The Department of Fair Housing enforces the law on sexual orientation and gender identity discrimination in California through the Fair Housing and Employment Act (FEHA). The FEHA prohibits discrimination based on sexual orientation and gender identity in the workplace.
FEHA is a broad form of anti-discrimination legislation, covering many avenues of employment. California employees can expect protection from discrimination based on sexual orientation, gender identity and gender expression in the terms and conditions of employment as well as in pre-employment inquiries and training programs.
The law applies to companies and businesses with 5 or more employees as well as employment agencies and labor organizations. In addition, licensing boards are prohibited from discrimination on the basis of this protected category. The law exempts religious organizations, but covers nearly all state and private workers.
Development of Sexual Orientation Protection
In 1992, Governor Pete Wilson signed a bill that prohibited sexual orientation discrimination as a form of political coercion in the workplace. The bill amended the California Labor Code at Section 1102.1 to protect workers from discrimination based on “actual or perceived sexual orientation.” It made no provisions for protection for workers from harassment based on sexual orientation, and was severely criticized by gay rights activists for its lack of scope.
In the year 2000, the California legislature proposed and passed a new bill that repealed the Labor Code amendment. In the same bill, it amended FEHA to include sexual orientation as a lawful basis for employment discrimination claims. Thus, sexual orientation became an additional protected category – employee classes that previously only included race, sex, national origin, color and religion.
Development of Gender Identity Protection
Protection against gender and gender identity discrimination became a part of FEHA four years later. On January 1, 2004, California amended FEHA to include gender discrimination as an unlawful form of employment discrimination. According to FEHA, the gender (or gender identity) protected category includes:
“the employee’s or applicant’s actual sex or the employer’s perception of the employee’s or applicant’s sex and includes the employer’s perception of the employee’s or applicant’s identity, appearance, or behavior, whether or not that identity, appearance, or behavior is different from that traditionally associated with the employee’s or applicant’s sex at birth.”
Thus, California employment discrimination law protects “gender identity” in three forms: 1) a worker’s actual sex 2) an employer’s perception of a worker’s sex and 3) an employer’s perception of the worker’s personal expression of gender even when not consistent with the worker’s sex at birth. The new category essentially protects transgender and transsexual employees from discrimination and harassment at work.
What California Law Says about Sexual Orientation Discrimination
California employees are protected by law from workplace discrimination based on sexual orientation as well as from workplace harassment based on sexual orientation. For purposes of California employment discrimination law, sexual orientation is defined as heterosexuality, homosexuality and bisexuality.
This means it is unlawful for an employer to treat any of its employees differently because they are gay, straight, lesbian or bisexual. It includes employment decisions, such as hiring, firing and demotion as well as employment practices, terms and conditions, such as the distribution of benefits, bonuses or other types of compensation.
Workers must not be harassed because they are gay, straight, lesbian, or bisexual in the workplace according to the law. This includes harassment from supervisors and managers and may include harassment from coworkers as well as independent contract workers. An employer may not allow sexual orientation or gender identity harassment to go unchecked. Under FEHA, an employer has the duty to prevent a hostile work environment, and failure to do so is a violation of the law.
What California Law Says About Gender Identity Discrimination
In addition, workers are protected from workplace discrimination based on gender, or gender identity. California is one of only a handful of states that go beyond protection of sexual orientation to protect gender identity – a worker’s actual or perceived sex, regardless of the worker’s sex at birth.
FEHA introduces several protections under the gender identity category. For instance, according to the law, employees in California have the right to be addressed using pronouns that reflect their gender identity. This applies to employee records and identification documents as well.
California employees also have the right to use restrooms that correspond to their chosen gender identity. An employee must not be forced to use a separate restroom or to use a restroom that opposes their gender identity. Similar provisions in the FEHA exist for dress code. An employer may enforce its own dress code, provided it allows an employee to dress according to their chosen gender identity.
Filing a Sexual Orientation or Gender Identity Complaint
Employees alleging discrimination or harassment based on sexual orientation or gender identity can file a complaint with the California Department of Fair Employment and Housing. A time limit of one year from the date of discrimination does apply, however. With a successful claim, employees are entitled to recover compensatory and punitive damages.
The Department begins the claim process with an investigation. To determine whether discrimination has occurred, it gathers information and evidence using employment records and testimony. After the investigation, the Department may assist with settlement or may refer the case to its legal department. If the Department concludes that a violation of the law has not occurred, it will issue a Notice-of-Right-to-Sue which allows an employee to take his claim into state court employing his own personal attorney.
It’s important for LGBT workers to be aware of their rights under both state and federal law and to get competent legal advice for handling complex situations of sexual orientation and gender identity discrimination at work. California still stands as a forerunner for codifying protection for gender identity discrimination, and will likely continue to consistently recognize and support equality in the workplace for the LGBT community.