Discrimination Against Transgender Workers Is Unlawful New Law Clarifies Protections for Transgender Workers

Alert number: 
5
April 26, 2012

Background

Since 2004, discrimination against and harassment of transgender and gender non–conforming workers has been against the law. But because the law barring discrimination and harassment was written in a confusing way, many employees did not know their rights, and many employers did not understand their responsibilities to prevent discrimination and harassment.

New Law

A new law (AB 887) that went into effect on January 1, 2012, clarifies the protections for transgender workers. Now, in addition to listing “sex” as a protected classification, our state anti-discrimination and anti-harassment law also explicitly includes “gender, gender identity, [and] gender expression.” The law further defines “gender expression” as a person’s gender–related appearance and behavior, whether or not that appearance or behavior is stereotypically associated with the sex the worker was assigned at birth. If an employer fires or refuses to hire a worker, or discriminates against a worker in pay or any other benefit of employment because of the worker’s gender identity or gender expression, that employer is breaking the law. In addition, harassing employees because of their gender, gender identity or gender expression is against the law.

Example

Ms. A has a short haircut and chooses to wear button down shirts and ties to work. When Ms. A applied for a promotion and was rejected she was told that she is not feminine enough. Ms. A may have a claim against her employer, and may be able to recover back pay, and compensatory and punitive damages.

Mr. B is a man who speaks softly and wears pastel colors. He works in a traditionally male environment and his coworkers harass by calling him a “girl” in a derogatory manner. He complained to management but they failed to take any action. Mr. B may have a claim against the employer, and may be able to recover back pay, and compensatory and punitive damages.

Guidance for Workers

Workers should be aware that if they are discriminated against or harassed based on their gender identity or expression, they may be able to bring a claim under the Fair Employment and Housing Act (FEHA). For example, it is unlawful to harass an employee because he or she is transgender. FEHA prohibits harassment at workplaces that have 1 or more employees. [Cal. Government Code 12940(j)(4)] FEHA prohibits discrimination by employers with five or more employees. [Cal. Government Code §§ 12926(d), 12940.]

Claims

If you feel your rights at your workplace have been violated, you can file a claim of discrimination with the California Department of Fair Employment and Housing within one year of the violation.

The Equal Employment Opportunity Commission also recently clarified that discrimination against transgender people is prohibited under Title VII. Therefore, if the employer has 15 or more employees, the employee can file a claim with the EEOC within 300 days of the unlawful action. Find your local EEOC office.

FURTHER INFORMATION

You can find free information about worker’s rights on our website. If you have additional questions, please contact our Workers’ Right Clinic at 415-864-8208 or toll-free at 866-864-8208.

This alert is intended as an information source for clients and friends of Legal Aid Society-Employment Law Center. The content should not be construed as legal advice, and readers should not act upon information in this publication without professional counsel. This material may be considered advertising under certain rules of professional conduct.