California’s Fair Employment and Housing Act (FEHA), Government Code 12940, prohibits employment discrimination or harassment based on gender, gender identity, or gender expression.
Some cities have passed their own regulations protecting gender identity and expression in the workplace. The city and county of San Francisco, for instance, has issued guidelines that include:
- Employers have the right to implement employee dress codes including those according to gender.
- Transgender employees have the right to comply with sex-specific dress codes according to their gender identity.
Employees may also be able to bring harassment claims if they are required to wear provocative or suggestive clothing such as short or tight skirts when other employees aren’t. This right extends to “stereotyping” claims based on genders, such as men being forbidden from wearing make-up or jewelry.
California Government Code 12941 specifically affords female employees the right to wear pants, except when:
- An employer requires employees in a particular occupation to wear a uniform;
- An employer requires an employee to wear a costume while that employee is portraying a specific character or dramatic role; or
- The council has exempted an employer from the requirements of [section 12941] for good cause shown.
Remedies for a violation of California discrimination laws include hiring, front pay, back pay, promotion, reinstatement, cease-and-desist orders, expert witness fees, reasonable attorney’s fees and costs, punitive damages, and emotional distress damages.
In addition to discrimination, disparate dress code standards can also subject employers to potential liability for sexual harassment. Note that California law also protects people who are not necessarily expressing gender identity but dress as the opposite sex unless there is a valid business reason not to.
Job applicants and employees who believe they have experienced wrongful discrimination may also file a complaint with the California Civil Rights Department (CRD). Complaints must be filed within one year of the last act of discrimination/harassment or, for victims who are under the age of 18, not later than one year after the victim’s eighteenth birthday.