Earlier this year, the U.S. Supreme Court handed down a 6-3 ruling that Title VII of the 1964 Civil Rights Act should extend legal protections to LGBTQ employees. The implication of the ruling means that employers nationwide are prohibited from discriminating against employees on the basis of their gender identity or sexual orientation.
In California, however, transgender employees have been protected to a certain extent since 2004. At the beginning of that year, California’s Fair Employment and Housing Act took effect. With this legislation, among other provisions, it became illegal for an employer with five or more employees to fire, fail to hire, or discriminate against an employee who was or appeared to be transgender or gender non-conforming.
While this law has been on the books for 16 years, the SCOTUS ruling that extends protection against sex discrimination to LGBTQ employees is icing on the cake, as far as Californian employees may be considered. Still, transgender workers constantly encounter hostility and barriers at work that may leave them asking what their rights really are.
Let’s address some of these common questions.
1. Does My Employer Have to Use My New Name or Preferred Pronouns?
If you are about to transition, are currently undergoing transition, or have recently transitioned, you may have decided to change your name or the pronouns you prefer to be used in reference to you. Once you signal these changes to your employer, your employment records and any identification documents should be updated. Your employer and coworkers may make mistakes and refer to you by a prior name or pronoun, but if this is done intentionally and persistently, you may have grounds for a harassment claim.
2. Should I Worry about My Employer’s Dress Code?
Your employer may not insist or reprimand you for abiding by a gendered dress code as long as you conform to the policy for how employees of that gender should dress. In other words, you are protected when you dress according to the gender you identify as. If your employer has grown accustomed to you presenting as one gender and you undergo a transition to another, your employer may not enforce a dress code conforming with the previous gender.
If you wear any article of clothing that is not acceptable under your employer’s dress code policy, however, you may not be protected if reprimanded.
3. Can I Be Fired for Using a Restroom that Conforms with My Gender Identity?
You have the right to use gendered restrooms that correlate with your gender identity. Employers may provide a unisex restroom for transgender employees to use, but they cannot be denied access to a gendered restroom aligned with their gender identity or expression. As with a dress code, employers may not compel an employee to use a certain restroom – even if the employee is undergoing a transition and the employer has grown accustomed to the employee presenting as a different gender.
4. How Am I Protected When I Disclose My Gender Identity or Openly Transition?
The California Supreme Court has interpreted LGBTQ employers who “come out” as engaging in a political activity. Sections 1101 and 1102 of the California Labor Code make it illegal for employers to punish an employee’s political activities or prevent them from engaging in such activities. This is important if employees work for an employer with fewer than five employees and may not otherwise be protected by California’s Fair Employment and Housing Act.
The elephant in the room, of course, is SCOTUS’ recent ruling to expand federal sex discrimination protections to LGBTQ employees. Ostensibly this would include an employee’s gender identity disclosure or transition during employment.
Do You Need Legal Support?
If you believe you have experienced discrimination or harassment at work because of your gender identity, reach out to our experienced and capable employment law attorneys at K2 Employment Law Group. We have what it takes to help you pursue fair and just compensation and hold responsible parties accountable when your rights are violated at work.
Learn more by scheduling a free initial consultation with us. During this risk-free opportunity, you’ll be able to talk to a K2 Employment Law Group attorney about your situation and hear from us about what we can do for you.
Schedule your complimentary first meeting with us today by calling (800) 590-7674 or by contacting us online.