It is unlawful to deny employment to someone based wholly or in part on the individual’s sex, gender, gender identity or gender expression. It is also unlawful to discriminate based on the perception of someone’s sex, gender, gender identity or gender expression.
California’s prohibition against sex discrimination includes discrimination on the basis of:
- Pregnancy, childbirth and breastfeeding or medical conditions related to pregnancy, childbirth or breastfeeding.
- Gender identity and gender expression, including transgender status and whether an employee is transitioning or has transitioned. For more information, see “Gender Identity and Expression Protections” on this page.
California protections under FEHA seek to guarantee equal employment regardless of sex/gender and to stop the ways that people are treated differently because of sex/gender, including paying people less, treating people adversely because of stereotypes, subjecting people to sexual conduct or hostile work environments and other adverse action.
Gender should almost never be a factor in any employment decision. In 2018, all gender-specific personal pronouns were removed from California’s anti-discrimination, anti-harassment, pregnancy disability, and family/medical leave laws, for example by changing “he” or “she” to “the person” or “the employee.”
You can be held liable for sex discrimination when employees face slurs based on gender stereotypes. Sex stereotypes include assumptions about a person’s appearance or behavior, gender roles, gender expression, or gender identity or ability or inability to do certain kinds of work. These assumptions may be based on myths, social expectations or generalizations.
- Never assign job duties based on sex stereotypes.
In Nichols v. Azteca Restaurant Enterprises, Inc., the Ninth Circuit Court of Appeals ruled that harassment and slurs based on stereotypes of how men and women should act amount to sex discrimination and violate federal employment discrimination laws.
FEHA prohibits you from compensating an employee differently because of the employee’s sex/gender. California’s Fair Pay Act also prohibits wage discrimination on the basis of gender.
Under the Fair Employment and Housing Act (FEHA), “gender” includes both “gender identity” and “gender expression.” It is unlawful to discriminate on the basis of gender identity, gender expression or because an individual is transgender, is transitioning or has transitioned.
The following are some key definitions under the law:
- Gender identity means each person’s internal understanding of their gender identity, which may include male, female, a combination of male and female, neither male nor female, or a gender different from the person’s sex assigned at birth; it specifically includes transgender persons. The definition also includes the perception of a person’s gender identity.
- Gender expression means “a person’s gender-related appearance or behavior … whether or not stereotypically associated with the person’s sex assigned at birth.” The definition also includes the perception of a person’s gender related appearance or behavior.
- Transgender is a general term that refers to a person whose gender identity is different from the person’s sex assigned at birth. A transgender person may or may not have a gender expression different from the social expectations of the sex assigned at birth. A transgender person may or may not identify as “transsexual.”
- Transitioning is a process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth.
California’s FEHA specifically provides that it is unlawful to discriminate against an individual who is transitioning, has transitioned, or is perceived to be transitioning.
The transitioning process may include, but is not limited to:
- Changes in name and pronoun usage (see “Recording and Use of Gender and Name” on this page);
- Facility usage
- Participation in employer-sponsored activities, such as sports teams, team-building projects, or volunteering;
- Undergoing hormone therapy, surgeries or other medical procedures.
According to DFEH guidance, a transgender person does not need to have completed any particular transition in order to be protected by the law. An employer can’t condition its treatment or accommodation of a transitioning employee on completion of a particular step in the transition.
California law prohibits you from imposing any physical appearance, grooming or dress standard that is inconsistent with an individual’s gender identity or gender expression. You can require adherence to reasonable workplace appearance, grooming and dress standards but they must be applied consistently and enforced in a non-discriminatory manner.
Practically speaking, a transgender person identifying as a woman must be allowed to dress in the same manner as non-transgender women and her compliance with the policy cannot be judged more harshly than non-transgender women.