Most employers know that discrimination against transgender and other gender-nonconforming persons is prohibited in California. But many employers have been confused about what legal rights transgender employees have and how to protect them. The Department of Fair Employment and Housing has offered help with its newly-released Transgender Rights in the Workplace: FAQ for Employers.
California’s Fair Employment and Housing Act (FEHA) specifically prohibits discrimination or harassment based on a person’s “gender identity” or “gender expression.” Govt C §12940(a), (j)(1).
In addition, the statute’s definition of “sex” includes “gender,” which itself includes a person’s gender identity and gender expression. Govt C §12926(r)(2). “Gender expression” is a person’s gender-related appearance and behavior, whether or not these are stereotypically associated with the person’s assigned sex at birth. Govt C §12926(r)(2).
And under Title VII (42 USC §§2000e—2000e–17), transgender discrimination has been held to be a form of sex discrimination. Smith v Salem (6th Cir 2004) 378 F3d 566, 574.
But how do employers provide fair and nondiscriminatory treatment of transgender applicants and employees? The DFEH’s new guidelines offer welcome assistance. They cover several issues, including:
- What an employer may and may not ask of an applicant. For example, an employer should not ask questions about his/her marital status, spouse’s name, or relation of household members to one another. Employers should also stay away from questions about a person’s body or whether they plan to have surgery because that information is generally protected by the Health Insurance Portability and Accountability Act (HIPAA).
- How to implement dress codes and grooming standards. Employers may require employees to comply with reasonable workplace appearance, grooming, and dress standards consistent with state and federal law, as long as they allow employees to appear or dress consistently with their gender identity or gender expression. Govt C §12949. This means that, for example, a transgender woman must be allowed to dress in the same way as non-transgender women, and her compliance with the dress code can’t be judged more harshly than non-transgender women.
- Employer obligations on bathrooms and locker rooms. Employees have the right to use a bathroom or locker room that corresponds to the employee’s gender identity. Employer should also provide a unisex single stall bathroom for use by any employee who chooses to do so.
As Corporate Counsel points out, this guidance is just in time because cases on these issues are starting to hit the courts. In a case of first impression, a Sacramento Superior Court judge held that FEHA prohibits employers from requiring transgender workers to use restrooms and locker rooms based on their assigned birth sex. And the Equal Employment Opportunity Commission has recently filed lawsuits and amicus curiae briefs in various courts addressing many LGBT discrimination-related issues, including two cases citing discrimination based on sexual orientation as a violation of Title VII’s prohibition against sex-based discrimination.
For more on handling discrimination claims in general, including those based on transgender status, check out CEB’s Wrongful Employment Termination Practice: Discrimination, Harassment, and Retaliation, chap 1 and Advising California Employers and Employees, chap 15.
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