Does California Have Gender Identity Discrimination Laws?

gender identity discrimination

California gender identity discrimination laws are plentiful. The Fair Employment and Housing Act (FEHA) in particular safeguards your right to work in an environment free from harassment.

In California, your employer cannot fire, fail to hire, or unlawfully discriminate against you in any way because you are transgender, transitioning, or gender non-conforming. 

If you believe you have been subjected to gender identity discrimination in the workplace, call Ottinger Employment Lawyers.

A seasoned employment lawyer can answer your questions and assist you in securing relief under state or federal employment laws.

Defining Gender Identity

“Gender identity” is a person’s self-identity.

Under California law, it is defined as a “person’s internal understanding of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different than from the person’s sex assigned at birth, or transgender.”

This means that gender identity is not necessarily the gender that a person was biologically born with. It is the gender a person identifies with and recognizes themselves to be.

Gender identity is not the same as sexual orientation or “gender expression,” though all three can be related.

Defining Gender Identity Discrimination in the Workplace

Under the U.S. Equal Opportunity Employment Commission’s (EEOC) gender identity discrimination definition, discrimination against gender identity in the workplace occurs when workers whose identities do not correspond with their birth gender face harassment, unwelcome behavior, or unfair treatment based on their gender expression, sexual orientation, or gender identity.

California law provides that unwelcome behavior is harassment when it is 

  • Offensive, humiliating, or distressing in ways that make it harder for you to do your job; 
  • Affects your emotional status in the workplace; or 
  • Interferes with and undermines your sense of well-being.

Gender identity discrimination can manifest as an employer’s refusal to permit employees to dress in a gender-conforming fashion they feel comfortable in.

Discrimination can also manifest in an employer’s refusal to let employees use single-sex facilities that correlate with “traditional” gender identities, such as bathrooms or locker rooms.

Gender identity discrimination may also appear as intrusive and inappropriate questions about private or medical issues.

Denying medical leave for gender-affirming treatments or making job offers contingent on providing proof of gender identity are also discriminatory.

What Are the California Gender Identity Discrimination Laws?

The California Fair Employment and Housing Act (FEHA) prohibits gender identity discrimination.

The FEHA bans discrimination against transsexuals, transvestites, and anyone displaying traits not customarily associated with their gender. Traits such as clothing, hairstyle, speech, mannerisms, or personality are examples.

While California laws do not prohibit dress policies and grooming standards altogether, employers must apply the same policies for all sexes and identities uniformly.

For instance, if an employer does not prohibit wearing lipstick for all employees, it cannot prohibit a male employee from wearing it.

While California prohibits most workplace discrimination, there are some exceptions. Certain religious organizations are exempt from discrimination laws in certain circumstances.

Additionally, California anti-discrimination laws recognize limited bona fide occupational qualification (BFOQ) defenses.

A BFOQ defense permits employers to consider a person’s gender when filling jobs that directly raise privacy concerns for customers or other third parties.

Employer Retaliation for Filing a Gender Identity Discrimination Claim

The law prohibits employers from retaliating against employees for filing a discrimination or harassment claim.

Employer retaliation measures may include termination, assigning an employee unfavorable tasks or shifts, and undeserved negative performance reviews.

If a co-worker or supervisor retaliates against you for complaining about discrimination at your workplace, you can file a retaliation complaint with the DFEH, EEOC, or Labor Commissioner, or contact a knowledgeable employment attorney.

Does California Gender Identity Discrimination Law Apply to All Employers?

The FEHA prohibits employers that retain more than five employees from discriminating against job applicants and employees.

This rule applies to all labor organizations, public and private employers, employment agencies, state licensing boards, and state and local governments.

California’s anti-harassment laws apply to private employers, state governments, local governments, employment agencies, labor unions, and state licensing boards, regardless of how many employees they have.

If you work for the federal government, including the United States Postal Service, federal anti-discrimination and harassment law, Title VII, applies instead.

The California Labor Code sections apply to all employers, regardless of their size, but do not protect federal government employees.

Ottinger Employment Lawyers Can Protect Your Gender Identity Rights

If you are a victim of workplace discrimination, contact Ottinger Employment Lawyers today. Our skilled California employment attorneys handle all gender discrimination employment issues.

We are one of the country’s top boutique law firms and have more than 20 years of experience helping victims of employment discrimination, including gender identity and sexual orientation discrimination.

We focus on client happiness and results and will fight to protect your workplace rights. Call or text 213-204-8002 today.

Author Photo

Robert Ottinger, Esq.

Robert Ottinger is an employment attorney who focuses on representing executives and employees in employment disputes. Before starting his firm, Robert slugged it out in courtrooms trying cases for the government. Robert served as a Deputy Attorney General for the California Department of Justice in Los Angeles and then as Assistant Attorney General for the New York Attorney General’s Office in Manhattan.

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