Gender Identity and Gender Expression Discrimination

There are only seven states that bar gender identity discrimination at work, and California is one of them. If you are gender-nonconforming or transgender, you should be aware that El Segundo employers are prohibited from discriminating against you. This doesn’t mean that they won’t, unfortunately. However, you may have a cause of action for gender identity or gender expression discrimination and a possibility of recovering compensation if they do. At the Calderone Law Firm, a dedicated El Segundo gender identity discrimination attorney may be able to represent you in a lawsuit for damages.

Gender identity and gender expression discrimination occur when someone is treated differently and unfairly in the workplace, or where that person is subject to adverse employment decisions because of his or her or their gender identity or expression. One of the clearest forms of gender identity or gender expression discrimination may be when you are terminated (or face another adverse employment decision like demotion, failure to be promoted, or failure to be hired) because you are planning sex reassignment surgery or come out as transgender. Gender identity and gender expression discrimination may involve harassment in the form of jokes, slurs, threats, or even physical violence. It can involve an employment policy that requires you to follow rules related to grooming or restroom usage that are inconsistent with your gender identity.

Case law arising out of Title VII of the federal Civil Rights Act of 1964 carries some protections related to gender expression in the context of sex discrimination, but there is no express prohibition against gender identity and gender expression discrimination under federal statutory law. The California Fair Employment and Housing Act (FEHA) expressly prohibits employment discrimination on the basis of gender identity and expression, and protects you in dressing and grooming and appearing in a way that’s consistent with your gender identity. In 2017, new regulations were adopted by the Department of Fair Employment Housing specifically to protect transgender people.

Under FEHA, gender identity is defined as your internal understanding of your gender. It could include female, male, a combination of these, neither of these, a gender different from the one assigned at your birth, and transgender. This understanding doesn’t need to be shown outwardly in order for you to invoke protections under FEHA. Your employer is not supposed to require documentation or evidence of your gender identity or expression as a condition of hiring you for a job. If you feel that an employer has violated any of these rules, a seasoned employment discrimination lawyer can assess the facts of your case to determine whether you may have a claim for damages.

There is a defense that employers can sometimes raise to charges of discrimination — the bona fide occupational qualification (BFOQ) defense. Generally speaking, the BFOQ defense allows employers to consider characteristics in hiring and employment that would normally be protected under anti-discrimination law, but that they believe constitute legitimate job qualifications in particular cases. However, under current California law, employers must allow an employee to perform job duties that correspond to the employee’s gender identity or expression, not the one they were assigned at birth, except where they can meet all elements of the BFOQ defense. In other words, an employee simply being trans or gender non-conforming, or identifying with a sex that is different from the one they were assigned at birth, will not alone be considered a BFOQ defense.

If your California employer has certain standards for grooming, clothes, or appearance, the employer isn’t allowed to require you to conform to standards that are not consistent with your gender identity or gender expression. For example, employers that enforce gender-specific grooming or dress policies on the basis of an employee’s gender as it was assigned at birth can potentially be liable for discriminating against a nonbinary or transgender employee.

If you ask to be identified by a preferred pronoun or gender, or a preferred name, and your employer refuses or simply doesn’t comply, it can be held liable for discrimination under FEHA. Employers can use an employee’s legal gender and name instead of an employee’s chosen name and the gender they identify with only as needed to satisfy a legally mandated duty, such as making reports to government agencies or departments.

Transitioning can involve surgery, hormone therapy, other medical procedures (as well as no medical procedures at all), as well as changes in pronoun and facility usage. You should not be discriminated against during or after your transition, or if others believe you to be transitioning to a gender besides the one you were assigned when you were born.

Employers in El Segundo must not discriminate on the basis of gender identity or gender expression. If you are concerned about discrimination or harassment on the basis of your status as a transgender, nonbinary, gender non-conforming, or otherwise LGBTQ individual, an experienced employment lawyer at the Calderone Law Firm may be able to help. Call us at (424) 348-8290 or complete our online form to learn more about your legal rights.