Transgender individuals are often subjected to stigma and discrimination in the workplace. Studies show that transgender people face double the rate of unemployment as the overall population, nearly half of transgender people who applied for a job were not hired, were fired, or were not promoted due to their gender identity, and nine in ten transgender employees experienced harassment or mistreatment on the job. In recent years, California has seen significant developments to transgender rights which employers should be aware of.
California Protections for Transgender Individuals
Fair Employment and Housing Act (FEHA). Employers, housing providers, and businesses may not discriminate against someone because they identify as transgender or gender non-conforming (or perceive that someone is transgender or gender nonconforming).
California Regulations Regarding Transgender Identity and Expression. The California Fair Employment and Housing Council regulations require employers to allow employees to use the restroom, locker room, dressing room, or dormitory (referred to collectively as “facilities”) that corresponds to the employee’s gender identity or gender expression, regardless of the employee’s sex assigned at birth. Requests from employees to change their names or the pronouns to be used to address them must be honored (the only exception being when a law mandates the use of the employee’s legal name). Employers should not make inappropriate inquiries about gender identity or require any proof in order to grant a request for facility usage or name preference. It is also unlawful to impose any physical appearance, grooming, or dress standard that is inconsistent with an individual’s gender identity or gender expression. Employers are further prohibited from using a “gender box” on employment applications, though employers may still ask for individuals to provide this information voluntarily.
Unruh Civil Rights Act. Discrimination based on sex (including the associated characteristics of gender, gender identity, and gender expression), race, color, religion, ancestry, national origin, age, disability, medical condition, marital status, or sexual orientation is outlawed in California. This law applies to all businesses such as hotels and motels, restaurants, theaters, hospitals, barber and beauty shops, housing accommodations, and retail establishments.
SB 396: Transgender Rights in the Workplace Poster and Training. Employers are required to post a “Transgender Rights in the Workplace” poster. The poster must be displayed along with other mandatory workplace notices in a prominent and accessible location in the workplace. SB 396 also requires the AB 1825 mandatory sexual harassment prevention training to include a component regarding gender identity, gender expression and sexual orientation.
AB 1732: The Equal Restroom Access Act. This act addresses gender identity discrimination by making it mandatory for all single-occupancy restrooms (“a toilet facility with no more than one water closet and one urinal with a locking mechanism controlled by the user”) in businesses, government buildings, and public places to be available to everyone, with corresponding visual designation as an “all gender” facility, regardless of gender identity. AB 1732 does not address multi-stall bathrooms, nor does it require any workplaces to add to existing facilities.
SB 179: The Gender Recognition Act (Effective September 1, 2018 & January 1, 2019). This act provides for a third gender option on California issued driver’s licenses, identification cards, and birth certificates, and improves the procedures for transgender and nonbinary individuals to change their name and gender marker to conform with their gender identity.
The following are some best practices for employers to ensure that their transgender employees are not being harassed or discriminated against in the workplace:
- Carefully review all handbooks and policies to ensure compliance. Include gender expression, gender identity, and transgender as protected characteristics in harassment, discrimination, and retaliation policies.
- Ensure that all employees are aware of company policies on harassment and discrimination based on sex, gender, sexual orientation, gender identity and/or gender expression, and are expected to adhere to them.
- Address employees by their asserted names and corresponding pronouns, irrespective of the name and/or gender marker on government issued identification cards.
- Implement reasonable workplace appearance and dress standards that allow employees to appear or dress consistently with their gender identity.
- Ensure the privacy and confidentiality of employees who have disclosed that they identify as transgender or that they will be transitioning.