Discrimination on the Job

Many transgender people face discrimination in various employment-related situations after they are hired. Below are some specific examples of discrimination in such a setting, and the legal regulations that act to prevent them.

In 1998, the U.S. Department of Labor’s Occupational Safety & Health Administration (OSHA) released a strongly worded memorandum clarifying that all workers should have unrestricted access to a convenient restroom, suggesting that a walk of over 1/4 mile for an employee to use the restroom is too far.1 However, the courts are divided on whether or not an employee has a right to use a restroom which corresponds to their gender identity. In 2001, the Minnesota Supreme Court ruled that an employer could require employees to use restrooms corresponding to their “biological gender,” despite the fact that Minnesota bans discrimination based on sexual orientation.2 In 2007, the 10th Circuit Court of Appeals ruled that an employer’s firing of a transgender employee for using restrooms which it determined did not correspond to her “biological sex” was a legitimate, non-discriminatory reason for firing her.3 On the other hand, at least one federal court has stated that segregating restrooms by sex and then refusing to allow an individual to use a restroom because of employer expectations regarding appropriate gender behavior or anatomy is a violation of Title VII’s protections against sex discrimination.4 A New York court similarly found that an AIDS non-profit could state a claim for sex discrimination under state law when a landlord refused to renew their lease because they allowed transgender clients to use restrooms in the building, after the landlord sought to prohibit them from doing so.5

No California court has ruled definitely on the issue of bathrooms and there is no certainty as to how a court might rule. However, there is some support for the notion that California businesses are engaging in unlawful sex discrimination under California’s Unruh Civil Rights Act when excluding transgender individuals from certain public accommodations.6 The California Fair Employment and Housing Commission noted in a 2006 decision that it was unlawful for a business to use a gender-based dress code to discriminate against patrons they perceived to be transgender.7 Transgender people should have the right to use the bathroom that corresponds with his or her preferred gender identity, regardless of his or her sex assigned at birth.8 If an employer has provided a unisex single stall bathroom for use by any employee who desires increased privacy, a transgender person has the right to use it but cannot legally be required to do so. If a bathroom-related issue arises in employment, employees should consider documenting the issue9 and speaking with an attorney. It is likely that the court will be guided by favorable decisions outside of California and that the employee’s case could create precedent in California.

Based on rulings outside of California, and the protection against gender identity discrimination in accommodations under the Unruh Civil Rights Act,10 a court ought to rule that an employer does not have the right to prohibit a person's use of the bathroom that corresponds to his or her gender identity, even if he or she has not completed sexual reassignment surgery. While genitalia are an indicator of sex, they are not determinative. For an employer to require sexual reassignment surgery before granting access to a particular bathroom is to create an illegitimate definition of sex which conflicts with current California law.

Furthermore, an employer is within its rights to allow transgender employees to use the restroom matching their presentation over the general objections of other employees, especially when considering that alternative accommodations are available to the complaining employees (i.e. gender neutral restrooms, other restroom facilities not utilized by the transgender employee, etc.).11 Also, regardless of an employer's definition of sex, unless such knowledge directly relates to the nature of the job, the employer has no right to know about private details of an employee's anatomy in the first place.

Employers, and even courts in some instances, may not always understand the importance of referring to transgender individuals by their preferred gender pronouns or may be uncomfortable with pronoun usage around transgender people.12 Nonetheless, a transgender employee has the right to be addressed by the name and pronoun that corresponds to the employee’s full time gender identity. Obtaining court-ordered name and gender changes can only help in successfully bringing a discrimination suit, but it is not necessary. While state law does not likely prohibit other employees from making inadvertent slips or honest mistakes about a person’s name or gender, it may outlaw intentional or persistent refusal to respect a coworker’s or employee’s gender identity. The Supreme Court has held that “severe or pervasive” harassment which creates an abusive working environment is an actionable form of discrimination under Title VII.13 Intentionally addressing a co-worker or employee by the incorrect name or pronoun after having been informed of that person’s gender identity may be an actionable form of discrimination.14

A job applicant has no legal duty to reveal her or his biological sex to the prospective employer. Akin to the hiring process, a transgender employee has the right to keep private the intimate details of his or her anatomy throughout the course of employment. Article 1, Section 1 of the California Constitution expressly protects a person's right to privacy, a right which can be interpreted to protect information regarding a person's transsexual status or intimate details of his or her anatomy.15 The privacy of a person's body is among the most fundamental of privacy rights; both the right to be clothed and the right to keep information about your body private from others. Unless knowledge of an employee's private anatomical details is an integral part of the job, or the employer can claim a compelling state interest in soliciting such information, the employee does not need to share this information at any time during the hiring process, employment, or transition.

Job Assignments
Issues may arise when employers claim that, while they are comfortable with employing a transgender person, their customers will be uncomfortable, which will adversely affect the company. One common consequence is that employers will place transgender employees on job assignments that keep them away from customer interaction. In some employment settings, this has little affect but, in others, there could be a significant pay difference or discrepancy in career advancement opportunities. Intentionally assigning a transgender employee to a lower paying or less desirable position based on his or her transgender status constitutes employment discrimination. California law prohibits employers from assigning an employee to a particular position based solely on his or her gender identity.16 An employer may be able to claim that having a specific sex is a “bona fide occupational qualification” for a position. However, under both state and federal law, an employer can only utilize this defense if they can show a “high correlation between sex and ability to perform job functions.”17

Dress Code
California state law explicitly prohibits an employer from denying an employee the right to dress in a manner suitable to that employee’s gender identity. In Jespersen v. Harrah’s Operating Company, Inc., the Ninth Circuit, sitting en banc, held that sex specific dress and grooming codes can constitute sex stereotyping if the evidence demonstrates that the “policy was adopted to make women [employees] conform to a commonly accepted stereotypical image of what women should wear.”18 Therefore, an employer who enforces gender-based dress codes must do so in a non-discriminatory manner. This means not only allowing a transgender woman, for instance, to dress the same as other women, but that her compliance with such a dress code cannot be judged more harshly than the compliance of other women.19 An employer may also not put appearance standards into place which are less favorable to one gender than another.20 However, employees must demonstrate that sex or gender identity, and not grooming policy violations, are the reason for any adverse employment action taken against them.21

  1. OSHA Interoffice Memorandum from John B. Miles Re: Interpretation of 29 CFR 1910.141(c)(1)(i): Toilet Facilities, Apr. 6, 1998. Last visited June 11, 2013. 

  2. Goins v. West Group, 635 N.W. 2d 717, 725 (Minn. 2001). 

  3. Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1224-25. (10th Cir. 2007). 

  4. Kastl v. Maricopa Cnty. Cmty. Coll. Dist., 2004 U.S. Dist. Lexis 29825, *10 (D. Ariz. June 3, 2004). 

  5. Hispanic AIDS Forum v. Estate of Bruno, 16 Misc. 3d 960, 964-65 (N.Y. Sup. Ct. 2007). 

  6. In the Matter of the Accusation of the Department of Fair Employment and Housing v. Marion’s Place, 2006 WL 1130912 (Cal.F.E.H.C.). 

  7. Id. at *30-31. 

  8. Transgender Rights Toolkit: A Legal Guide for Trans People and Their Advocates, “Equal Access to Public Restrooms", Lambda Legal Defense and Education Fund. Last visited June 13, 2013. 

  9. See People in Search of Safe and Accessible Restrooms (PISSAR) Checklist, document hosted by the University of California Lesbian, Gay, Bisexual, Transgender, and Intersex Association. Last visited June 13, 2013. 

  10. Cal. Civ. Code § 51(e) (5) 

  11. Cruzan v. Special School District, No. 1, 294 F.3d 981 (8th Cir. 2002). 

  12. See Farmer v. Brennan, 511 U.S. 825 (1994) (Court avoided referring to Dee Farmer, a male-to-female transsexual, as either “he” or “she,” instead referring to her as “petitioner” throughout opinion). 

  13. Harris v. Forklift Sys., 510 U.S. 17, 21 (1993). 

  14. Advancements in State and Federal Law Regarding Transgender Employees, April 2006, National Center for Lesbian Rights & Transgender Law Center. Last visited June 12, 2013. 

  15. Cal. Const. art. I, § 1. 

  16. Cal. Gov. Code, §12940(a). 

  17. Int’l Union v. Johnson Controls, 499 U.S. 187, 202 (1991). 

  18. Jespersen v. Harrah’s Operating Company, Inc., 444 F.3d 1104, 1112 (9th Cir. 2006) (en banc). 

  19. Cal. Gov. Code, § 12949. 

  20. Frank v. United Airlines, 216 F.3d 845, 854 (9th Cir. 2000) (airline could not require female flight attendants to be slimmer than was required of male flight attendants). 

  21. Creed v. Family Express Corp., No. 3:06-CV-465RM, 2009 U.S. Dist. LEXIS 237 (N.D. Ind. Jan. 5, 2009) (transgender employee was terminated after being told that “she could no longer present herself in a feminine manner at work” had failed to prove that her gender, not grooming policy violations, motivated her termination).