Legal Protections for Transgender Workers in California

Transgender workers are often subjected to harassment and discrimination in the workplace including blatant misgendering, questions about genitalia, questions about medical treatments, and refusal to use one’s chosen name. While this discriminatory behavior is still prevalent in the workplace, the 2020 Bostock v. Clayton County decision determined that gender identity and sexual orientation are protected under federal law.

The Bostock v. Clayton County Decision

In Bostock v. Clayton County, the Supreme Court held that sex-based protections under Title VII of The Civil Rights Act of 1964 extend to sexual orientation and gender identity. Under Title VII, it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” Because discrimination based on sexual orientation or gender identity are inherently tied with sex, the protections of Title VII apply. Those protections also extend to housing, employment, education, healthcare, and other areas where individuals are protected from sex-based discrimination.

California’s Additional Discriminal & Harassment Protections

It is unlawful for an employer in California with 5 or more employees to consider sexual orientation or gender identity when making the following decisions:

• hiring
• firing, furloughs, or reductions in force
• promotions
• demotions
• discipline
• training
• work assignments
• pay, overtime, or other compensation
• fringe benefits
• other terms, conditions, and privileges of employment

Addressing Misgendering and Harassment

While refusal to use a persons preferred pronouns may be considered harassment or discrimination, not all cases of misgendering are violations of the law. To qualify the conduct must be severe or pervasive when considered in combination with all other unwelcome conduct based on the individual’s gender identity, resulting in an intimidating, hostile, or offensive work environment. Employers or coworkers who continue to address you in the wrong way after you have informed them of your correct name and pronoun could be engaging in illegal harassment.

Employer Responsibilities in California

After a complaint is made, employers must take the necessary steps to remedy the situation. If an employer fails to remedy the discriminatory or harassing behavior, the employer may be subject to an EEOC investigation. A substantiated investigation from the EEOC can result in both monetary and non-monetary consequences including training, and monitoring for up to 5 years after the investigation. In order to prevent some of these issues, diversity training is an essential part of being an employer. Employers and employees can reduce the need for litigation by building a safer and more inclusive workplace culture.

Seek Legal Assistance From An Experienced Employment Attorney

If you have been subjected to sex-based harassment or discriminatory behavior in the workplace, we can help. Contact TONG LAW, we are experienced at helping employees assert their rights.