Transgender Employment Discrimination in California

It is a violation of California employment laws for an employer to discriminate against a person based on gender identity or gender expression. Transgender employees who are discriminated against by employers can file a lawsuit against the employer for damages.

Below, our California employment discrimination lawyers discuss the following frequently asked questions about lawsuits for gender discrimination against California workers:

Transgender
The California Fair Employment and Housing Act (FEHA) protects applicants and employees from discrimination based on gender, gender identity, and gender expression.

If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.

1. Is transgender discrimination against the law in California?

Gender discrimination in employment is a violation of California state and federal law. Under California law, the Gender Nondiscrimination Act and the California Fair Employment and Housing Act (FEHA) make it illegal for an employer to discriminate based on gender, including gender identity and gender expression.1

Under the FEHA, it is an unlawful employment practice for an employer to discriminate against a person because of his or her sex, gender, gender identity, or gender expression. This includes:

  • Refusing to hire
  • Firing or discharging an employee
  • Refusing to select a person for a training program
  • Discriminating against a person in compensation or conditions of employment.2

California employment laws protect transgender applicants and employees regardless of their gender, gender identity, or gender expression.3 The FEHA provides the following definitions for transgender, gender identity, and gender expression.

Transgender is, “a general term that refers to a person whose gender identity differs from the person's sex assigned at birth. A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth. A transgender person may or may not identify as “transsexual.”4

Gender identity means, “each 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 from the person's sex assigned at birth, or transgender.”5

Gender expression “means a person's gender-related appearance or behavior, or the perception of such appearance or behavior, whether or not stereotypically associated with the person's sex assigned at birth.”6

The transgender employment discrimination laws also apply to unions and labor organizations, which are prohibited from excluding, expelling, or restricting membership to a person based on sex, gender, gender identity, or gender expression.7 Transgender discrimination prohibitions also apply to apprenticeship training programs and employment agencies.89

The laws prohibiting transgender discrimination in employment are intended to protect all workers by providing work opportunities based on an individual's abilities and not his or her gender. Employers and others may have gender-based stereotypes that would prevent them from giving individuals a fair chance to perform a job. These generalizations may include false ideas about the qualifications, job performance, physical abilities, work habits, and productivity of transgender individuals.

There are limited exceptions where an employer's practice may treat a group of employees differently. This is known as the “bona fide occupational qualification” (BFOQ) defense.10

An employer has to prove that such a practice is justified because “all or substantially all of the excluded individuals are unable to safely and effectively perform the job in question and because the essence of the business operation would otherwise be undermined.”11

These BFOQ exception cases are very narrow, including limited therapeutic or privacy-based exceptions, such as assigning same-sex childcare specialists or health care workers. Personal privacy considerations may justify a BFOQ where the job requires:

  • An employee to conduct body searches or observe people in a state of undress;
  • Prevailing social standards provide that it would be offensive to have an individual of a different sex present; or
  • It is detrimental to the physical or mental welfare of individuals being observed or searched.12

A BFOQ defense cannot be used where the exception is based on stereotypes, tradition, or simple customer preference. The BFOQ defense cannot be used to justify the following:

  • Customer preference for employees of one sex or gender;
  • A correlation between height and sex;
  • A correlation between sex and strength or agility;
  • The need to provide separate facilities for one sex;
  • The fact that a transgender individual's sex at birth is different from the sex required for the job; or
  • Members of one sex have traditionally been hired to perform a certain type of job.13

2. How are transgender individuals protected from employment discrimination?

The California Fair Employment and Housing Act (FEHA) protects applicants and employees from discrimination based on gender, gender identity, and gender expression.14

Federal employment laws do not specifically refer to transgender individuals as a protected class. However, the Equal Employment Opportunity Commission (EEOC) interprets and enforces Title VII's prohibition on sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation.15

Additionally, federal have upheld gender discrimination protections against transgender employees.16 This includes unlawful sex discrimination for:

  • Firing an employee who was planning or made a gender transition;
  • Failing to hire an applicant because she was a transgender woman;
  • Harassing an employee based on gender transition; and
  • Denying an employee equal access to a common bathroom corresponding to the employee's gender identity.

Gender and transgender discrimination are prohibited in any aspect of employment or hiring. It is against California for an employer to do any of the following based on your gender identity or gender expression:

  • Refuse to hire you
  • Refuse to select you for a training program
  • Demote you
  • Fire you
  • Pay you less
  • Reduce your salary
  • Deny equal pay
  • Deny a promotion
  • Deny reinstatement
  • Deny benefits
  • Force you to quit
  • Harass you
  • Assign different duties
  • Discriminate against you in any way

Employees are also protected in the workplace through employer policies that correspond to the employees' gender identity. Employees have a right to use a restroom at work that corresponds to the employee's gender identity. Similarly, employees have the right to use the employer's gendered dress code that corresponds to the employee's gender identity.

3. How do I know if I was discriminated against because of my gender identity?

It can be difficult to identify discrimination in the workplace. Employers often discriminate against individuals without saying anything out loud or putting anything in writing. However, discrimination against transgender employees still occurs silently or behind closed doors.

There are a number of signs that could indicate gender or transgender discrimination. This includes:

  • Acknowledging ideas from one sex while ignoring the same idea from another sex
  • Excluding transgender employees from important meetings
  • Making jokes about a transgender employee's gender identification
  • Regularly failing to acknowledge a transgender employee's gender expression by referring to the employee by another gender
  • Prohibiting a transgender employee from access to the bathroom corresponding to the employee's gender identity
  • Failing to prevent a hostile work environment
  • Sharing offensive jokes, tweets, comics, or memes
  • Making different gender employees take on different duties
  • Retaliating against an employee for reporting transgender discrimination
  • Forcing transgender employees to quit
  • Allowing sexual harassment in the workplace
  • Supervisors not taking reports of transgender discrimination seriously
  • Firing an employee who expresses a change in gender identity
  • Not making reasonable accommodations for an employee with a gender expression different than the sex assigned at birth

Job Applications and Interview Questions

It is not necessarily a sign of gender discrimination if an employer asks an applicant questions like whether the individual is male or female, or his or her height and weight. However, these questions need to be applied equally to all job applicants and the information is to be used for legitimate record-keeping or screening purposes and not to discriminate.17

It is not acceptable for an employer to ask about an applicant's gender identity, gender expression, or whether the employee has had medical or surgical procedures related to gender. Employers can ask about gender or biological sex only if it is a bona fide occupational qualification.

4. Should I file a gender discrimination complaint with the EEOC?

Gender discrimination is a violation of California state law and federal law. The Equal Employment Opportunity Commission (EEOC) enforces federal sex discrimination laws. The California Department of Fair Employment and Housing (DFEH) generally handles complaints of gender discrimination at the state level, including transgender discrimination.

While state and federal laws protect employees against gender discrimination, California law generally offers broader protections than federal law, including giving the employee more time to file a complaint, or applying to smaller employers. For these reasons, many individuals who have been discriminated against file claims with the DFEH first.

Gender discrimination claims generally require exhausting administrative remedies before the employee can file a lawsuit against the employer. This may mean the employee has to go through the DFEH complaint process first. However, your attorney may file a complaint with the DFEH and obtain an immediate right to sue notice without waiting for the administrative process first.

You can file a gender discrimination complaint directly with the DFEH. In general, you must submit a pre-complaint inquiry within one year of the last incident of discrimination, harassment, or retaliation. The complaint can be filed online, by phone, or using the form from the DFEH website. The pre-complaint inquiry will initiate an intake interview with the DFEH and help determine whether a complaint can be accepted for investigation.

An investigator will contact the individual who filed the complaint within 60 days and discuss the details of the inquiry. If the DFEH representative determines a complaint cannot be accepted, the matter will be dismissed, and the individual has the immediate right to sue their employer in court. If the representative accepts the pre-complaint inquiry, a complaint will be prepared for your signature and delivered to the employer. The complaint can also be dual-filed with the EEOC.

After the employer responds to the complaint, the DFEH will review the answer. In many cases, the DFEH will offer dispute resolution services, which provides a way for the employee and employer to negotiate a resolution to the complaint. If the complaint cannot be resolved through negotiations, the DFEH will initiate an investigation.

A gender discrimination investigation will determine whether there was a violation of California law. If the investigation finds there was a violation, the case will go the DFEH Legal Division. If there is no violation, the case will be closed. After the case is closed, the employee has the immediate right to take their case to court.

The DFEH Legal Division generally requires the parties to go through mediation. Mediation is a type of alternative dispute resolution where a neutral mediator facilitates a settlement. The mediator works with the parties to find a mutually agreeable solution. A benefit of mediation is that it allows the employer and employee to come up with their own way to settle the dispute, without leaving it all up to a judge to decide the outcome.

If the parties cannot settle the dispute through mediation, the DFEH could file a lawsuit on behalf of the employee against the employer. If the DFEH does not pursue the claim, it will close the investigation and the employee has the immediate right to file a lawsuit against the employer.

5. Can I sue my employer for transgender discrimination in California?

Employees who are discriminated against because of their sex or gender identity can sue their employers for discrimination. An employee generally has to file a complaint with the DFEH or EEOC before they can file a lawsuit in civil court.18

You are first required to obtain a “right to sue” notice before your case can be taken to court. You can request an immediate right to sue notice, without having to go through a complete DFEH or EEOC investigation. However, if you receive a Right-to-Sue notice, your complaint will not be investigated by DFEH. Alternatively, you may also wait until the DFEH dismisses your case or finds no violation before taking your case to court.

According to the DFEH, proceeding directly to court without an investigation by the DFEH is only advisable if you have an attorney. Your attorney can obtain a right to sue notice and file your case in California Superior Court, in the county where the discrimination occurred, or another relevant county.19

The complaint will be served upon your employer and anyone else named in the lawsuit. The defendants will respond to the complaint with a formal answer responding to the allegations, and the case may proceed through litigation. At any point before the end of a trial, the employer and employee can negotiate a settlement and settle the case out of court.

6. What are my damages in an employment discrimination lawsuit in California?

The damages available in an employment discrimination lawsuit will depend on the type of gender discrimination involved and the extent of the harm to the applicant or employee. This may include money damages, punitive damages, and equitable remedies.

Damages from employment discrimination based on transgender status may include losses from:

  • Back pay with interest
  • Front pay
  • Higher income from a promotion
  • Higher income from a raise
  • Benefits
  • Pension benefits
  • Bonus payments
  • Pain and suffering
  • Emotional distress

Employees who have suffered discrimination can also seek attorney's fees, court costs, and other damages associated with filing the lawsuit.20

Although rare, an employee may also eligible to receive punitive damages. Punitive damages act as a way to punish the behavior of the wrongdoer and can deter the employer or other employers from engaging in similar wrongful behavior in the future.

Another remedy in employment discrimination cases is reinstatement. If an employee has been fired based on their gender expression or identity, the court can require the employer to rehire the employee. However, the employee may not always want this remedy that requires them to return to the discriminatory workplace.

7. Can my boss fire me for reporting transgender discrimination?

California workers cannot be retaliated against for opposing workplace discrimination, including transgender discrimination.21

The FEHA protects employees who are retaliated against for:

  • Opposing workplace harassment
  • Opposing transgender discrimination against other employees
  • Reporting transgender harassment or discrimination
  • Assisting with DFEH investigations or government inquiries
  • Filing a harassment or discrimination claim

An employer cannot take retaliatory action, including termination, against an employee for citing discrimination or harassment violations or filing a gender discrimination lawsuit.22 Firing an employee for filing a harassment or discrimination claim is considered "wrongful termination".

If an employer retaliates against an employee for reporting FEHA violations, the employee may be able to file a complaint with the DFEH or file a lawsuit against the employer for retaliation or wrongful termination.

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For questions about California transgender discrimination laws, retaliation, or to discuss your case confidentially with one of our skilled California employment law attorneys, do not hesitate to contact us at Shouse Law Group.

We have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.





Legal References:

  1. Fair Employment and Housing Act 12940 -- Unlawful Practices. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”)
  2. Same.
  3. Fair Employment and Housing Act 12926 -- Definitions. (“(r)(2) “Sex” also includes, but is not limited to, a person's gender. “Gender” means sex, and includes a person's gender identity and gender expression. “Gender expression” means a person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth.”)
  4. Fair Employment and Housing Act 11030 -- Definitions. (“(e) “Transgender” is a general term that refers to a person whose gender identity differs from the person's sex assigned at birth. A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth. A transgender person may or may not identify as “transsexual.””)
  5. Fair Employment and Housing Act 11030 -- Definitions. (“(b) “Gender identity” means each 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 from the person's sex assigned at birth, or transgender.”)
  6. Fair Employment and Housing Act 11030 -- Definitions. (“(a) “Gender expression” means a person's gender-related appearance or behavior, or the perception of such appearance or behavior, whether or not stereotypically associated with the person's sex assigned at birth.”)
  7. Fair Employment and Housing Act 12940 -- Unlawful Practices. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (b) For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organization's staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.”)
  8. Fair Employment and Housing Act 12940 -- Unlawful Practices. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (c) For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.”)
  9. Fair Employment and Housing Act 12940 -- Unlawful Practices. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (d) For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, where the law compels or provides for that action.”)
  10. Fair Employment and Housing Act 11031 -- Defenses. (“Once employment discrimination on the basis of sex has been established, an employer or other covered entity may prove one or more appropriate affirmative defenses as generally set forth in section 11010, including, but not limited to, the defense of Bona Fide Occupational Qualification (BFOQ).”
  11. California Code of Regulations 7286.7 -- Affirmative Defenses to Employment Discrimination (“(a) Bona Fide Occupational Qualification (BFOQ). Where an employer or other covered entity has a practice which on its face excludes an entire group of individuals on a basis enumerated in the Act (e.g., all women or all individuals with lower back defects), the employer or other covered entity must prove that the practice is justified because all or substantially all of the excluded individuals are unable to safely and efficiently perform the job in question and because the essence of the business operation would otherwise be undermined.”)
  12. Fair Employment and Housing Act 11031 -- Defenses. (“(b) Personal privacy considerations may justify a BFOQ only where: (1) The job requires an employee to observe other individuals in a state of nudity or to conduct body searches, and (2) It would be offensive to prevailing social standards to have an individual of a different sex present, and (3) It is detrimental to the mental or physical welfare of individuals being observed or searched to have an individual of a different sex present.”)
  13. Fair Employment and Housing Act 11031 -- Defenses. (“(a) Among situations that will not justify the application of the BFOQ defense are the following: (1) A correlation between individuals of one sex and physical agility or strength; (2) A correlation between individuals of one sex and height; (3) Customer preference for employees of one sex; (4) The necessity for providing separate facilities for one sex; (5) The fact that an individual is transgender or gender non-conforming, or that the individual's sex assigned at birth is different from the sex required for the job; or (6) The fact that members of one sex have traditionally been hired to perform the particular type of job.”)
  14. Fair Employment and Housing Act 12940, see footnote 1 above.
  15. U.S. Equal Employment Opportunity Commission, “What You Should Know About EEOC and the Enforcement Protections for LGBT Workers” at: https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm
  16. Macy v. Dep't of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (April 20, 2012), (“Thus, we conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination "based on . . . sex," and such discrimination therefore violates Title VII.”)
  17. Labor Code 1197.5 LC(a)(1)(D) (“A bona fide factor other than sex, such as education, training, or experience. This factor shall apply only if the employer demonstrates that the factor is not based on or derived from a sex-based differential in compensation, is job related with respect to the position in question, and is consistent with a business necessity. For purposes of this subparagraph, “business necessity” means an overriding legitimate business purpose such that the factor relied upon effectively fulfills the business purpose it is supposed to serve. This defense shall not apply if the employee demonstrates that an alternative business practice exists that would serve the same business purpose without producing the wage differential.”)
  18. Fair Employment and Housing Act 12965 -- Unlawful Practices. (“(b) If a civil action is not brought by the department within 150 days after the filing of a complaint, or if the department earlier determines that no civil action will be brought, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on his or her request, the right-to-sue notice.”)
  19. Fair Employment and Housing Act 12965 -- Unlawful Practices. (“(b) ... The superior courts of the State of California shall have jurisdiction of those actions, and the aggrieved person may file in these courts. An action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendant's residence or principal office.”)
  20. Fair Employment and Housing Act 12965 -- Unlawful Practices. (“(b) ... In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's fees and costs, including expert witness fees.”)
  21. Government Code 12940 GC -- Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions FEHA wrongful termination / retaliation. ("It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: . . . (h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.")
  22. California Code of Regulations (CCR) tit. 2, § 11021. ("a) FEHA Retaliation Generally. It is unlawful for an employer or other covered entity to demote, suspend, reduce, fail to hire or consider for hire, fail to give equal consideration in making employment decisions, fail to treat impartially in the context of any recommendations for subsequent employment that the employer or other covered entity may make, adversely affect working conditions or otherwise deny any employment benefit to an individual because that individual has opposed practices prohibited by the Act or has filed a complaint, testified, assisted or participated in any manner in an investigation, proceeding, or hearing conducted by the Council or Department or its staff. (1) Opposition to practices prohibited by the Act includes, but is not limited to: (A) Seeking the advice of the Department or Council, whether or not a complaint is filed, and if a complaint is filed, whether or not the complaint is ultimately sustained; (B) Assisting or advising any person in seeking the advice of the Department or Council, whether or not a complaint is filed, and if a complaint is filed, whether or not the complaint is ultimately sustained; (C) Opposing employment practices that an individual reasonably believes to exist and believes to be a violation of the Act; (D) Participating in an activity that is perceived by the employer or other covered entity as opposition to discrimination, whether or not so intended by the individual expressing the opposition; or (E) Contacting, communicating with or participating in the proceeding of a local human rights or civil rights agency regarding employment discrimination on a basis enumerated in the Act.")

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