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Marlin & Saltzman Recent News

December 12, 2016

Transgender people have historically been subject to discrimination, harassment and violence in many aspects of life, including employment. Thankfully, transgender individuals in California have obtained an array of legal protections in the employment arena under federal, state and sometimes local laws.

Federal Protections

Most federal courts have interpreted the main federal law against unlawful employment discrimination, known as “Title VII” of the Civil Rights Act, to protect transgender people as part of its prohibition against sex and gender discrimination. This includes the U.S. Court of Appeals for the 9th Circuit with jurisdiction over California.

In a major expansion of protections, the federal agency charged with enforcing federal anti-discrimination laws – the Equal Employment Opportunity Commission – in April 2012 issued a major decision declaring that transgender discrimination is part of sex discrimination in violation of Title VII. This new policy will have sweeping national implications for those struggling with discrimination and harassment at work based on their gender identities, or in their efforts to get hired.

Of note, the federal Americans with Disabilities Act does not protect against discrimination based on transsexualism and gender identity disorder as medical conditions.

State Protections

California’s primary law against employment discrimination is the Fair Employment and Housing Act, known as FEHA, which has prohibited since 2003 employment discrimination based on “gender identity and gender expression” as part of the definition of sex discrimination. This protects transgender people and persons who do not conform stereotypically to physical or personality traits associated with their genders.

For example, while a California employer may impose a dress code, it must still allow an employee to dress in accordance with his or her gender expression or identity. FEHA may also require workplace access to the appropriate bathroom that corresponds to a person’s gender identification, or referral to the employee using his or her name of preference, and with pronouns corresponding to his or her preferred gender.

FEHA also protects people from employment discrimination who associate with transgender individuals.

Other California laws prohibiting employment discrimination or harassment based on disability, perceived sexual orientation or political activity can also lend protection to transgender people.

Local Protections

Some municipalities and counties in California have their own ordinances prohibiting employment discrimination based on gender identity. Such laws may protect workers who are actually or perceived to be transsexual vis-à-vis employers within the local jurisdiction and sometimes also employers that contract with the local government.

Legal Remedies

Illegal discrimination can encompass a wide variety of situations, not just being fired or not hired because a person falls within a protected class. Discrimination can include not being promoted, being paid less than comparable colleagues, or not receiving the same benefits or perks. Discrimination also includes illegal harassment at work like intimidating or offensive speech or behavior at the hands of co-workers or management that is so severe the individual cannot adequately perform his or her duties.

In the case of a transgender person, discriminatory acts could potentially include acts against the individual because of sex reassignment surgery or perceptions of others that he or she is not acting or dressing in conformance with gender stereotypes.

In short, transgender Californians at work have the legal right to be treated equally, and with respect and dignity. What legal remedies might be available to you in California if you are discriminated against or harassed based on your gender identity in your attempt to get a job or in your current position will vary based on the circumstances of your case and which laws apply to you.

It behooves you to consult with an experienced employment discrimination lawyer with knowledge of the complex laws that could apply. You may be able to file a complaint with a government agency or bring claims in a lawsuit by yourself or in a class action.Potentially, you may be able to recover punitive damages; monetary damages for lost wages and other losses; attorney’s fees; costs; injunctive relief like an order for reasonable accommodations, reinstatement or to stop harassment; and more.

Legal advice is also important in a discrimination case in order to comply with strict procedural requirements and deadlines.

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