Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex. Federal protections under the Civil Rights Act apply to employers with 15 or more employees. The Supreme Court’s decision in Bostock v. Clayton County, entered on June 15, 2020, extended the 1964 Civil Rights Acts to gays, lesbians, and transgender employees from discrimination based on sex. California also prohibits gender discrimination that includes protections for transgender and gender non-conforming people. On September 26, 2020, Governor Gavin Newsom signed legislation to strengthen protections already in place, like the Gender Non-Discrimination Act that went into effect on January 1, 2019.
California Workplace Protections
The California Department of Fair Employment and Housing (“DFEH”) contains transgender and gender non-conforming employee rights. If you believe you have been discriminated against or face retaliation, you have many options. You can take legal action and should consult with an attorney.
- Appropriate Questions. An employer may ask an employee or an applicant for employment questions relevant to the position. That includes questions regarding a person’s employment history or skills to perform a particular job. An employer can’t ask questions designed to elicit a person’s sexual orientation, gender identity, marital status, or other personal information. Also, an employer should not ask about a person’s body and whether they plan to have surgery.
- Harassment is conduct that subjects another person to hostile, offensive, or intimidating behavior. An employer, through a supervisor, co-worker, or other non-employee, is prohibited from making remarks or taking action against another based on their gender identity or expression. For example, a transgender or gender non-conforming person has the right to be addressed by their name even if that person has yet to legally change their name. That includes pronouns, regardless of whether that person has legally changed their name and gender marker. When an employer consistently and intentionally refuses to use a person’s correct name and pronoun, it can amount to illegal harassment.
- Dress Code. When dress codes are required, they must be enforced in a non-discrimination manner. That means that an employee is entitled to dress following their gender identity or expression. Transgender or gender non–conforming employees cannot be held to different standards.
- Right to Safe and Appropriate Restrooms. All employees have a right to safe restroom and locker room facilities. This includes the right to use a restroom or locker room that corresponds to the employee’s gender identity. Gender identity is what the person identifies with, regardless of the employee’s assigned sex at birth. When there are unisex bathroom stalls or restrooms, such usage should remain a matter of choice. An employee shouldn’t be forced to use a unisex stall or bathroom.
- Health insurance coverage for partners. Under California law, same-sex spouses and registered domestic partners are entitled to the same health care coverage as different-sex spouses.
Contact an Experienced Attorney
When violations of law occur based on a person’s sex, it creates a private right of action. The individual may seek assistance through the Department of Fair Employment and Housing or through an attorney. Whatever the situation may be, employment attorneys at the Law Offices of Jeremy Pasternak are available to speak with you about your legal rights and potential options. We invite you to schedule a consultation with us at 415-693-0300 or online.