A Brief Overview of the Transgender Employee in California & Their Rights in the Workplace

The ensuing provides a brief overview of the current status of the California Transgender population, rather startling statistics concerning discrimination faced by the Transgender community in the workplace as well as developing law in California for which a MCLE Self-Study Elimination of Bias one (1) unit of credit test is available hereinafter.

I. A Brief Overview California Transgender Status

Adult persons who identify as transgender as of June 2016 is slightly under 1.4 million in the United States. This number is nearly double what it was four years prior. Adult identifying transgender persons are approximately 0.76% of the California population or 218,000 in California. California ranks the second (2nd) largest population in the U.S. for identifying transgender adults.

In December 2016 the largest survey examining the experiences of transgender people in the United States was issued. The report provided a detailed look at the experiences of transgender people across a wide range of categories including employment. The findings reveal disturbing patterns of mistreatment and discrimination. For example:

• The unemployment rate among respondents (15%) was three times higher than the U.S. population (5%).
• One in six (16%) respondents who have ever been employed reported losing a job because of their gender identity or expression in their lifetime.
• In the past year, 27% of those who held or applied for a job during that year reported being fired, denied a promotion, or not being hired for a job they applied for because of their gender identity or expression.
• 30% of respondents who had a job in the past year reported being fired, denied a promotion, or experiencing some other form of mistreatment related to their gender identity or expression.
• 77% of respondents who had a job in the past year took steps to avoid mistreatment in the workplace, such as hiding or delaying their gender transition or quitting their job.

With these sobering statics, an overview of California employment laws is discussed in brief.

II. Overview of California Workplace Protections

A. California’s Fair Employment and Housing Act (“FEHA”)

As of January 1, 2004, California’s Fair Employment and Housing Act (FEHA) made it illegal for an employer with five or more employees to fire, fail to hire, or discriminate in any way against employees who are or are perceived to be transgender or gender non-conforming.

The FEHA also prohibits “harassment” on the basis of gender identity or gender expression, regardless of the employer’s size. Harassment occurs when a supervisor, co-worker, or non-employee in a workplace subjects one to hostile, offensive, or intimidating behavior because of gender identity or gender expression.

The FEHA uses the phrases, “sex, gender, gender identify and gender expression” to define transgender. Gender expression is defined by the law to mean a “person’s gender related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” There are two kinds of gender transitions, social transition and physical transition. Social transition involves a process of socially aligning one’s gender with the internal sense of self such as changes in name and pronoun, bathroom facility usage, participating in activities such as sports teams. Physical transition refers to medical treatments an individual undergoes to physically align their body with internal sense of self such as hormone therapies or surgical procedures. A transgender person does not need to complete any particular step in a gender transition in order to be protected by the law.

On February 17, 2016, the California Department of Fair Employment and Housing (“DFEH”) issued guidelines on transgender employee rights. Pursuant to said clarifications, an employer may ask an employee/applicant as to their employment history, for references and non-discriminatory relevant questions. However, an interviewer should not ask questions designed to detect a person’s sexual orientation, gender identity, including marital status, spouse’s name, or relation to household member. Further, employers should not ask questions about a person’s body or whether they plan to have surgery.

Additionally, the law prohibits an employer from denying an employee the right to dress in a manner suitable for that employee’s gender identity. A transgender employee should be allowed to serve in a sex-segregated job based on their gender identity. An employer who requires a dress code must enforce it in a non-discriminatory manner. Though a job assignment can be based on sex so long as the assignment is otherwise in compliance with state law.

All employees have a right to safe and appropriate restroom and locker room facilities. Including the right to use a restroom or locker room which corresponds to the employee’s gender identity regardless of the employee’s assigned gender at birth. If possible, the employer should provide an accessible unisex bathroom for use by any employee regardless of reason, though use should be a matter of choice not requirement.
Violations of the FEHA create a private right of action for the individual victim for which the individual may seek assistance through the DFEH or through an individual attorney.

B. California Political Activity Laws – “Coming Out”

California Labor Code Sections 1101 and 1102 prohibit employers from preventing an employee’s political activity, or punishing an employee due to that employee’s political activity. The California Supreme Court has interpreted “coming out” by lesbian, gay, and bisexual employees to constitute protected political activity. Likewise, if one discloses gender identity or openly transitions from one gender to another, the employee may argue that these actions are protected political acts.

C. Bay Area Specific Laws

Several local Bay Area cities such as San Francisco, Oakland, City and County of Santa Cruz, have laws that prohibit gender identity discrimination in employment. Usually, these ordinances cover only employers within the locality, although some such as San Francisco extend coverage to employers who do business with the municipality. An employee should review the city and county in which they live for applicable laws and related agencies.

III. Conclusion

The number of those who identify as transgender is growing in California. As a community, transgender people face frequent employment discrimination, which leads to high rates of unemployment. Education of employment rights and duties is an important element in prevention and resolution.

Earn one hour of Elimination of Bias MCLE credit by answering the questions on the Self-Study MCLE test. Send your answers, along with a check ($30 per credit hour for CCCBA members / $45 per credit hour for non-members), to the address on the test form. Certificates are dated as the day the form is received.