At a time when transgender individuals are gaining visibility around the country, the world of employment law has been expanding to protect employees from discrimination, harassment, and retaliation on the basis of their gender identity. Given that a 2021 study showed that nearly half of LGBTQ+ employees reported discrimination or harassment on the basis of their sexual orientation or gender identity, this area of law will likely continue to develop. This post provides general guidance to employers about the rights of transgender, nonbinary, and gender nonconforming employees in California.

In 2020, the Supreme Court held that Title VII of the federal Civil Rights Act of 1964 protects employees from discrimination on the basis of sexual orientation and gender identity. (See Bostock v. Clayton County (2020) 590 U.S. 640 (“Bostock”). While this landmark determination expanded employees’ rights to file federal lawsuits, California has afforded these protections at a state level for years.

Under California law, including the Fair Employment and Housing Act (“FEHA”), Unruh Civil Rights Act, and California Code of Regulations (“CCR”), employers may not discriminate against employees based on actual or perceived sexual orientation, gender identity, and gender expression, including transgender status. Government entities and employers with at least five employees are forbidden from discriminating against these gender diverse employees at any time during hiring, employment, or termination. In addition, all employees have an obligation to take reasonable steps to prevent gender diverse employees from experiencing a hostile work environment and correct harassing behavior.

In light of the significant legislation aimed at protecting transgender, nonbinary, and gender nonconforming employees’ rights in California, employers should familiarize themselves with these laws, including the following:

Locker Rooms and Facilities. Under California law, employers have a right to use facilities that correspond to their gender identity or gender expression, regardless of the employee’s assigned gender at birth. An employer may not request documentation from the employee to prove their gender identity. Whether the employee has undergone gender reconstruction surgery is also irrelevant. However, employers can make reasonable and confidential inquiries of an employee’s gender identity for the sole purpose of ensuring safe and adequate access to facilities. If employers have single-occupant facilities, such as single-stall restrooms, they must be designated as gender-neutral with clearly posted signage.

Gender Pronouns. California law requires employers to address employees by their preferred name and pronoun, regardless of whether the employee has legally changed their name or gender identity.

Dress Codes. California prohibits employers from imposing physical appearance, grooming, or dress standards upon an applicant or employee that are inconsistent with that individual’s gender identity or gender expression.

Healthcare Coverage. Under California law, employer-provided health care plans must cover medically-necessary gender affirming care just as they cover other medically necessary treatments.

Given the legal obligations to protect transgender employees, employers should take affirmative steps to prevent discrimination and harassment, such as:

  • Educating and training supervisors and nonsupervisory employees about the laws that protect transgender, nonbinary, and gender nonconforming employees;
  • Displaying the Civil Rights Department (“CRD”) required posters about California’s Discrimination and Harassment laws and Transgender Rights in the Workplace;
  • Making the CRD’s Fact Sheet about transgender employees’ rights available to all employees;
  • Ensuring that existing harassment, discrimination, and retaliation policies conform with all legal requirements;
  • Promptly and thoroughly investigating any allegation of discrimination, harassment, or retaliation.

This post does not address exceptions, such as those for religious associations, religious rights in the workplace, Bona Fide Occupational Qualifications (“BFOQ”), and Business Necessity. Employers are encouraged to seek legal advice when addressing these issues in the workplace.


References

https://www.reuters.com/legal/us-supreme-court-hear-challenge-ban-transgender-care-minors-2024-06-24/.