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Navigating Gender Identity Discrimination in the California Workplace: Your Legal Protections

In California, a state known for its progressive stance on human rights, gender identity discrimination in the workplace remains a significant concern. Here’s what you should know about the intersection of gender identity and workplace discrimination, what you can do as a transgender or gender-nonconforming person to prove discrimination, and how you can get help if your workplace is mistreating you.

Legal Protections in California

California law explicitly prohibits discrimination based on gender identity. The Fair Employment and Housing Act (FEHA) offers comprehensive protections, ensuring that individuals are judged on their merits rather than their identity. The state’s robust legal protections for people based on their gender identity are among the most comprehensive in the United States. Here’s an overview of these protections:

  • Fair Employment and Housing Act: This act prohibits discrimination in employment and housing based on gender identity and expression. Employers are not allowed to discriminate in hiring, promotion, termination, or any other employment condition. It also requires employers to allow employees to dress and use facilities in accordance with their identity.
  • Senate Bill 396 – Workplace Training: Known as the “Transgender Work Opportunity Act,” this legislation mandates that all California employers with five or more employees provide training on harassment based on gender, expression, and sexual orientation. This training must be part of the larger sexual harassment training and is required every two years.
  • California Restroom Sign Law: California law requires that all single-occupancy restrooms in any business or public place be identified as all-use restrooms, thereby providing safe and equal bathroom access for transgender and gender non-conforming individuals.

These laws reflect California’s commitment to protecting the rights and dignity of people based on their gender identity, ensuring they are treated equally and without discrimination in various aspects of public life.

Understanding Gender Identity Discrimination in the Workplace

What constitutes discrimination? Gender identity discrimination occurs when an employee is treated unfavorably because of their gendered identity or expression. This can manifest in various forms, including:

  • Hiring and Promotion Bias: Refusing to hire or promote or unfairly terminating an employee because they are transgender or do not conform to traditional norms.
  • Misgendering and Name Use: Consistently using incorrect pronouns or refusing to use an employee’s affirmed name, especially after being corrected, can be a form of harassment and discrimination.
  • Unequal Pay and Benefits: Paying a transgender or gender non-conforming employee less for the same work as their cisgender counterparts or denying them equal benefits.
  • Harassment: Subjecting an employee to derogatory comments, jokes, or actions based on their identity or expression, including verbal harassment or physical assault.
  • Denial of Access to Facilities: Denying a transgender employee access to restrooms and other facilities that align with their identity.
  • Exclusion from Workplace Activities: Excluding transgender employees from meetings, team activities, or other workplace events because of their gender identity.
  • Lack of Accommodations: Not providing reasonable accommodations for transgender employees, such as allowing time off for medical procedures related to transition.
  • Forced Disclosure: Requiring employees to disclose their transgender status or pressuring them to answer personal questions about their identity or transition process.
  • Dress Code Enforcement: Enforcing dress codes that are not inclusive of transgender or gender non-conforming employees or punishing them for dressing according to their identity.
  • Retaliation: Punishing an employee for filing a complaint about gender identity discrimination, participating in an investigation, or supporting another employee’s complaint.

If you experience any of these issues related to your gender expression, you may have the right to file a workplace discrimination or harassment claim

Proving Discrimination

Proving workplace gender identity discrimination can be challenging, but several steps and strategies can be employed to build a strong case:

  • Documenting Incidents: Documenting instances of discrimination is crucial. This can include keeping emails, recording dates and times of discriminatory comments or actions, and noting any witnesses.
  • Gathering Evidence: Gather any relevant company policies and performance reviews. Discrepancies between policy and practice or sudden negative changes in performance reviews can be indicative of discrimination.
  • Witness Testimonies: Witness accounts can be powerful evidence. Colleagues who are willing to corroborate your experiences can significantly strengthen your case.
  • Comparison with Cisgender Colleagues: If possible, show a contrast in treatment between you and cisgender colleagues, particularly in areas like pay, promotions, job assignments, or disciplinary actions.
  • Internal Company Channels: Start by exploring internal grievance mechanisms. Many companies have policies and procedures for addressing discrimination complaints.
  • Legal Assistance: If internal channels are unhelpful, seeking legal assistance is the next step. An experienced employment law attorney can help you determine the best way to build your case and pursue justice for the mistreatment you’ve experienced at work. 
  • Filing a Complaint: Your attorney will help you determine if you should file a complaint with the California Department of Fair Employment and Housing (DFEH). The DFEH investigates complaints of discrimination and can mediate or litigate on your behalf.

Remember, each case is unique, and the approach to proving discrimination will depend on the specific circumstances. It’s crucial to consult with experienced legal professionals to navigate the complexities of these cases effectively.

Get the Help You Need With Workplace Gender Discrimination Claims

Navigating gender identity discrimination in the California workplace is challenging, but understanding your rights and the avenues available for assistance is empowering. By documenting incidents, gathering evidence, and seeking appropriate help, transgender individuals can assert their rights and fight against workplace discrimination.

If you are experiencing discrimination in the workplace, it is in your best interest to consult with a legal professional who specializes in employment law. The skilled attorneys at Le Clerc & Le Clerc, LLP, can help. We have spent decades representing clients in complex employment rights disputes and have the knowledge and experience to help you pursue compensation for your mistreatment. Schedule your consultation with our California employment law firm to learn how we can help you. 

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