Know Your Rights: Can Employers Legally Discriminate Against Members of the LGBTQ+ Community?

Know Your Rights: Can Employers Legally Discriminate Against Members of the LGBTQ+ Community?

VOICE Staff

The California Fair Employment and Housing Act (FEHA) and Title VII of the federal Civil Rights Act (Title VII) make it illegal for any employer to fire, demote, fail to hire, fail to promote, harass, or otherwise discriminate against anyone because of their sexual orientation, gender identity, and/or gender expression.

These laws are clear and although most California employees are covered under these laws, there are a few exemptions. The exemptions include certain employees of religious entities like churches, mosques and those who work for very small employers. The state protections described here apply to employers with at least five employees and federal discrimination protections apply to entities with at least 15 employees. It is important to note however, the California “harassment provisions” apply to every entity, even if there is only one employee.

Harassment is considered a form of discrimination that occurs when an employer or a co-worker, with the employer’s knowledge, subjects an employee to a hostile, offensive, or intimidating work environment because of their sexual orientation, gender identity, and/or gender expression.

For such behavior to be considered illegal, it must be unwelcoming, and so harmful that it interferes with an individual’s ability to do their job. The law protects LGBTQ+ individuals from harassment by supervisors, coworkers, or even customers and third parties.

Employers in California are also required to recognize and respect an individual’s gender non-conforming and non-binary identities and requires that employers respect all gender identities and expressions.

In addition, if an individual who is not already out decides to come out, their employer is prohibited from discriminating against or mistreating them because of it.

The same protections hold true for individuals who transition while employed. Both state and federal law cover an employee’s transgender and transitioning status. An employee has a right to tell their employer they are transitioning, and the employer cannot discriminate against or mistreat the individual because of it.

In addition, employees have a right to safe and appropriate restroom facilities and can use the restroom at work that corresponds with their gender identity. Employers are prohibited from telling a transgender individual which restroom to use. Employers with single-stall restroom must label them as “All Gender,” “Unisex,” “Gender Neutral,” or something similar.

For individuals being interviewed for a job, it is illegal in California for a prospective employer to ask about one’s sexual orientation, gender identity, or gender expression either directly or indirectly (by asking about one’s spouse for example). It is also illegal for a potential employer to ask you to disclose your gender on a job application or to make one’s gender identity a condition of employment.

In a situation where an individual who is not a member of the LGBTQ+ community is being mistreated by an employer who mistakenly thinks they are, and the employer mistreats them because of it; it is important to know California law prohibits discrimination based on both actual or perceived sexual orientation, gender identity, and/or gender expression. This means an employee is protected even if their employer is mistaken about their sexual identity. It is also illegal in California to discriminate against someone because they associate with an individual who is a member of the LGBTQ+ community.

It is also illegal in California for an employer-provided health insurance plan to exclude gender-affirming care. These plans, as well as government-provided Medi-Cal, must cover medically necessary gender-affirming care just like they cover other medically necessary treatments.

If you or someone you know has been denied treatment by an HMO or other managed health care plan, contact the Department of Managed Health Care to appeal. Or, if you or someone you know encounters an exclusion under a different kind of health plan, contact a legal organization for help understanding your options.

In addition, under California law same-sex spouses and registered domestic partners are entitled to the same health care coverage as different-sex spouses.

Finally, it is illegal for any employer to retaliate against an employee who has complained about discrimination or harassment in the workplace. Unfortunately, however, this type of response is common. If you are being retaliated against because you complained about discrimination and/or harassment, it is suggested you document what is happening; speak up and try to solve the problem provided you feel safe to do so; and/or reach out to a civil rights organization for assistance.

You can also file a complaint with the Department of Fair Employment and Housing (DFEH), the state agency responsible for enforcing these laws. Filing a DFEH complaint is free and you are not required to have an attorney to do so.

DFEH has published a Frequently Asked Questions resource that explains employment discrimination law generally, as well as a fact sheet for employers that details transgender people’s rights in the workplace.

This information was sourced from the American Civil Liberties Union.

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