Federal workplace protections for LGBTQ+ employees have expanded significantly since the United State Supreme Court’s 2020 decision in Bostock v. Clayton County. Unlike federal law, California has long considered sexual orientation, gender identity, and gender expression to be “protected” under the law. However, California employers should pay attention to recent federal developments to ensure they understand the applicable protections and how to implement and enforce workplace policies that are consistent with those protections.
Federal Law – Title VII
The EEOC released new guidance in conjunction with the one-year anniversary of the Bostock decision. There, the U.S. Supreme Court ruled that Title VII prohibits workplace sex discrimination on the basis of an employee’s sexual orientation. The Court reasoned that, “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” The EEOC clarified in its guidance that this prohibition applies to all employment rights and privileges – including “hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.”
The Court’s inclusion of sexual orientation and gender identity under the Title VII umbrella of “sex discrimination” also means that workplace harassment based on sexual orientation or gender identity may create an unlawful hostile work environment. According to the EEOC, “the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, [but] harassment is unlawful when it is so frequent or severe that it creates a hostile work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).”
California Law – Fair Employment and Housing Act
Gender identity, gender expression, and sexual orientation are protected characteristics under California’s Fair Employment and Housing Act (FEHA). The FEHA prohibits employers from discriminating against an employee who is gender non-conforming or identifies as transgender, or because the employer perceives them as such.
Similarly, the California Department of Fair Employment and Housing’s (DFEH) guidance on “Transgender Rights in the Workplace,” addresses “social transition,” which it defines as “socially aligning one’s gender with the internal sense of self,” which can include changes in name and pronouns and bathroom facility usage. “Physical transition” refers to the process of undergoing medical treatments to “physically align [an individual’s] body with internal sense of self.” The FEHA protects employees from gender identity and gender expression discrimination and harassment, regardless of whether they have undergone any form of gender transition.
Related Employer Policies and Practices
Employers are prohibited from basing employment decisions on an individual’s sexual orientation, gender expression, or gender identity. Employers must include LGBTQ+ protections in their policies and practices, and ensure employees understand the organization’s expectations in this area.
Facility Usage. Employers must allow employees to use the bathrooms, locker rooms, or showers that correspond to the employee’s gender identity, regardless of the employee’s assigned sex at birth. The DFEH states, “An employer should provide an easily accessible unisex single stall bathroom for use by any employee who desires increased privacy, regardless of the underlying reason.” However, employers cannot require employees to use a unisex single stall restroom – doing so must be the employee’s choice.
Dress/Uniform Policies. Employers may implement dress codes, but must enforce them in a non-discriminatory manner. California Government Code section 11034(g) requires employers to allow employees to dress in accordance with their gender identity and gender expression, “unless the employer can establish a business necessity.” Employers also cannot hold a transgender employee to a different dress or grooming standard than other employees. For example, many employers who require employees to wear uniforms have gender neutral requirements.
Names and Pronouns. The EEOC states that, “intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.” Similarly, under California Government Code section 11034(h)(3), employers who refuse to abide by an employee’s requests “to be identified with a preferred gender, name, and/or pronoun, including gender-neutral pronouns,” may be liable for discrimination. Section 11034(h)(4) provides an exception for government-issued identification documents if necessary to meet a legally mandated obligation, such as the I-9 Employment Eligibility Verification form.
Workplace policies and procedures must comply with all of these requirements. California employers also should include the terms “gender expression, gender identity and transgender” as protected characteristics in their EEO-related policies. EEO compliance training must also cover these topics, and should address employee-preferred pronoun and name usage. Finally, all employers must promptly respond to gender-based complaints as they would any other EEO complaint. Such practices will help prevent, and encourage a healthy work environment for all employees.