Recent headlines about the transformation of Bruce Jenner to Caitlyn Jenner not only raised eyebrows of reality TV fans–it raised a significant number of employment related concerns about gender identification and related discrimination, such as:
- How does dress code enforcement change?
- Which bathroom should be used by a transgender employee?
- How should employees address someone who identifies with the gender opposite to that with which they were born?
- How do employers prevent hostile work environments?
California law protects against discrimination based on employees' gender identity and gender expression characteristics. As such, employers and employees alike should be aware of the relevant employment laws and the impact they have on transgender employees.
Gender Identity Discrimination
California has prohibited discrimination against transgender and gender non-conforming people in housing and employment since 2004 and in public accommodations since 2005. The Gender Nondiscrimination Act (2011) made the law more clear by making “gender identity” and “gender expression” their own enumerated protected categories.
In one California case, an employee whose sex assigned at birth was female identified as male. The employee was transitioning to male and the employer required him to use the women's bathroom until that transformation was complete. The employee sued for discrimination under the Fair Employment and Housing Act (FEHA) and the employer sought to have the case dismissed. The court held the employee had stated a claim, reasoning that it would be unlawful for an employer to require a transgender employee to use the bathroom and locker room of his or her birth-assigned sex.
Employers have the right to implement gendered dress codes. Employees in California have the right to comply with the dress code that corresponds to their gender identity. An employer cannot force an employee to wear a uniform that does not conform to the person's gender identity or expression. With this in mind, employers are well-served to implement gender neutral dress codes that require employees to dress professionally or appropriately without designating attire associated with any sex unless there is a bona fide occupational need for such distinctions. Furthermore, employers should not impose dress codes that require employees to dress as their birth-assigned sex.
Because California law protects transgender employees from discrimination, employers must not permit co-workers to treat a transitioning employee in a hostile manner. Such treatment can create a hostile work environment and subject the employer and the harassing co-worker to liability. Being uncomfortable with someone's transition is not a valid excuse. Likewise, vendors' and customers' hostile comments must not be tolerated. It is highly recommended that supervisors undergo training to watch for inappropriate comments and to report them in an accurate and swift manner.
Experienced California Employment Lawyers
The lawyers with Kingsley & Kingsley located in Los Angeles, California have a wealth of experience fighting for victims of discrimination and harassment. If you have questions about gender identity discrimination, or if you would like to have an attorney evaluate your claim, contact Eric Kingsley today for a free initial consultation. Or you can call us in Los Angeles at 888-500-8469.