Know Your Rights: Employment Law

DISCRIMINATION IN EMPLOYMENT
Significant strides have been made to reduce the prevalence of gender-based harassment and discrimination in the American workplace. Unfortunately, employment discrimination still exists and transgender individuals may still experience unwanted harassment or discrimination at work on the basis of their real or perceived sex, gender, gender identity, or expression. According to the U.S. Supreme Court, states still continue to rely on gender-based stereotypes in the workplace (specifically in the area of administering leave benefits).1 “Reliance on such stereotypes cannot justify the States’ gender discrimination in this area.”2 Moreover, the Court has also held that state action is prohibited if it perpetuates stereotypes about how men and women are supposed to behave.3

In California, the Fair Employment and Housing Act (FEHA) makes it unlawful for an employer with five or more employees to harass or discriminate against transgender people.4 The statute also protects employees that file a complaint or assist in the investigation of an employment discrimination claim against an employer from retaliation. However, 70 percent of the transgender community still reports experiencing workplace harassment or discrimination directly related to their gender identity.5 Discrimination and harassment is illegal at all times, and might occur during the hiring process, during the course of employment, or in regard to unlawful termination. Verbal, physical, and sexual harassment are all forms of employment discrimination covered under FEHA, and applies to all companies, no matter how few employees it has. The law explicitly outlaws discrimination or harassment based on “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation.”6 In 2003, the Gender Nondiscrimination Bill (AB 196) amended FEHA7 to explicitly protect transgender employees by adding a gender identity specification to the definition of “sex.”8 Relief under FEHA, then, is available to those who file a claim of discrimination based on sex, stereotypes, or gender identity within a year of the incident.

In some localities in California, employees are protected from employer discrimination based on gender identity regardless of the number of people their company employs. San Francisco,9 Oakland,10 City and County of Santa Cruz, West Hollywood, San Diego, and other cities have passed laws that explicitly protect employees against gender identity discrimination. All of these ordinances cover employers within the locality. San Francisco extends coverage further to employers who do business with the municipality. Again, a harassment claim, as opposed to a discrimination claim, can always be brought under FEHA regardless of the number of people the company employs. Individuals in states other than California may also be protected against anti-LGBT discrimination depending on their locality or jurisdiction.11 As of 2012, nearly half of the American population lived in a state or locality with a trans-inclusive nondiscrimination law.12

Moreover, a transgender person in California can bring a suit for discrimination or harassment under the current framework of disability laws. Under the FEHA, an employer cannot discriminate against an employee with a disability.13 In 2001, California passed the Prudence K. Poppink Act, which removed transsexualism and gender identity disorder from the list of conditions that were excluded from disability protections under FEHA.14 Thus, individuals with gender identity disorder or gender dysphoria are entitled to the same legal protections as persons who have other medical conditions. FEHA provides that an employee may obtain reasonable accommodation in order to perform her or his job, which can include being referred to with the appropriate gender pronouns, being permitted to dress in accordance with gender identity, being permitted to use the appropriate bathroom, or receiving time off for hormone treatment or surgery.

Additionally, all California employers are bound by the California Labor Codes, two of which prohibit employers from forbidding an employee’s political activity or punishing an employee due to her or his political activity.15 In Gay Law Students Association v. Pacific Telephone and Telegraph Company, the California Supreme Court interpreted “coming out” by lesbian, gay, and bisexual employees to constitute such protected political activity.16 Likewise, if someone discloses their gender identity or openly transitions from one gender to another, one may argue that these actions are protected political acts. The Supreme Court of California has held that “the struggle of the [gay] community for equal rights, particularly in the field of employment, must be recognized as a political activity.”17 The courts have not addressed the applicability of these laws to transgender people, but decisions related to lesbian, gay, and bisexual employees are helpful precedent for any such case.

A victim of discrimination or harassment based on gender identity might also find relief under federal law. Title VII, section 703 of the 1964 Civil Rights Act asserts that it is “an unlawful employment practice for an employer to fail or refuse to hire or discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin...”18 In Price Waterhouse v. Hopkins, the Supreme Court ruled that harassment directed at a person because that person does not conform to traditional sex stereotypes is a form of sex discrimination prohibited by Title VII.19 Based on this landmark decision, federal law prohibits discrimination based on sex stereotypes.

To establish such a claim, a transgender person must prove that the discrimination or harassment was due to her or his failure to conform to a gender or sex stereotype. Several circuits, including the Ninth Circuit, which has jurisdiction over California, have interpreted Price Waterhouse to mean that a transgender person can bring a claim of action under Title VII based on gender or sex stereotyping.20 According to the Ninth Circuit, Title VII prohibits “gender stereotyping harassment.”21 In Nichols v. Azteca Restaurant Enterprises, the court held that harassment “based upon the perception that [the plaintiff] is effeminate” is harassment because of sex, in violation of Title VII.22 There are a number of other circuit courts that have also held that gender stereotyping by employers is prohibited under Title VII.23

It is important to be aware that employers may be able to raise defenses that allow them to discriminate against certain groups of people, even if they are classes of individuals protected under Title VII. For instance, an employer may be able to claim that a “bona fide occupational qualification” (or BFOQ) allows them to discriminate based on sex without violating the law. The BFOQ defense is rarely upheld, however, because an employer is required to show that sex-based discrimination is reasonably necessary to the normal operation of a particular business. In other words, it must be related to an individual’s ability to perform a specific job.24 Conversely, an employer may argue that discrimination did not occur by offering a “legitimate nondiscriminatory reason” (or LNDR) for why they took an adverse employment action against a transgender employee.

Until recently, no court had ever ruled that Title VII protected transgender persons as a class. However, on April 20, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued a landmark administrative ruling explicitly holding for the first time that discrimination against transgender employees in the workplace is covered under Title VII sex nondiscrimination law.25 In the decision, the EEOC concluded that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on … sex’ and such discrimination … violates Title VII.”

Examples of Cases Under Sex Stereotyping and Gender

Price Waterhouse v. Hopkins, the Supreme Court found that Hopkins was passed over for a promotion at her accounting firm because she did not conform to sex stereotypes. Hopkins used foul language and was too “macho.” The Court held that the firm’s failure to promote Hopkins because she did not conform to traditional sex stereotypes was a form of unlawful sex discrimination under Title VII.26

Ulane v. Eastern Airlines, Inc.,27 the 7th Circuit held that a male-to-female transsexual airline pilot was not protected under Title VII because discrimination against transgender individuals is based on “gender” and not “sex” under the law. Ulane was a decorated U.S. Army pilot that began serving as a pilot and flight instructor with Eastern after being discharged from the military. Her employer was unaware of her transition until after she returned to work from having sex reassignment surgery. Although Ulane has not been overruled in the 7th Circuit, it has been criticized by several courts in other circuits.28 For a 9th Circuit case similar to Ulane, see Holloway v. Arthur Anderson & Company.29 Both cases may have limited applicability today and do not preclude a claim of discrimination based on gender-stereotyping.

Smith v. City of Salem, Ohio, the 6th Circuit found in favor of Smith, a male-to-female transsexual lieutenant for the Salem Fire Department after she was questioned at work for her appearance and for not being “masculine enough.” Her employer attempted to terminate her from her job. The court held that Title VII bars “discrimination based on a failure to conform to stereotypical gender norms.”30


  1. Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721 (2003). 

  2. Id. at 730. 

  3. Craig v. Boren, 429 U.S. 190 (1976). 

  4. Cal. Gov. Code, §§12900-12996. 

  5. State of Transgender California, Transgender Law Center, March 2009. Last visited June 10, 2013. 

  6. Cal. Gov. Code, §12940 and Cal. Code Regs. tit. 2, §7287.6. 

  7. AB 196: What It Means to You, Transgender Law Center. Last visited June 10, 2013. 

  8. Transgender Employees and Tenants in California: Rights and Responsibilities as Clarified by the Gender Nondiscrimination Act of 2003 (AB 196), National Center for Lesbian Rights and Transgender Law Center. Last visited June 10, 2013. 

  9. San Francisco Police Code, § Section 3303. 

  10. Oakland Mun. Code, ch. 9.44. 

  11. State Nondiscrimination Laws in the U.S., Jan. 20, 2012, National Gay and Lesbian Taskforce. Last visited June 10, 2013. 

  12. Jurisdictions with Explicitly Transgender-Inclusive Nondiscrimination Laws, June 11, 2012, National Gay and Lesbian Taskforce. Last visited June 10, 2013. 

  13. Cal. Gov. Code § 12940(a). 

  14. Cal. Gov. Code § 12926.1 

  15. Cal. Lab. Code § 1101-1102. 

  16. Gay Law Students Ass’n. v. Pac. Tel. & Tel. Co., 24 Cal. 3d 458, 488 (1979). 

  17. Id. 

  18. Civil Rights Act of 1964, § 703 (1976). 

  19. Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). 

  20. Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000); see also Barnes v. City of Cincinnati, 401 F.3d 729, 737 (6th Cir. 2005); Bibby v. Phila. Coca-Cola Bottling Co., 260 F.3d 257, 263-64 (3d Cir.2001); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 215-16 (1st Cir. 2000). 

  21. Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1069 (9th Cir. 2002) (en banc) (Pregerson, J., concurring). 

  22. Nichols v. Azteca Restaurant Enterprises, 256 F.3d 864, 874-75 (9th Cir. 2001) (overruling DeSantis v. Pacific Telephone & Telegraph Company, Inc., 608 F.2d 327 (9th Cir. 1979)). 

  23. See Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005) (citing Smith v. City of Salem, Ohio, 378 F.3d 566, 575 (6th Cir. 2004); Prowel v. Wise Bus. Forms, Inc. 579 F.3d 285, 290 (3rd Cir. 2009); Doe v. Belleville, 119 F.3d 563, 580 (7th Cir. 1997), vacated and remanded on other grounds, 523 U.S. 1001 (1998); Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058, 1062 (7th Cir. 2003); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999); Medina v. Income Support Division, 413 F.3d 1131, 1135 (10th Cir. 2005) (citing Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001)); Schmedding v. Tnemec Co., Inc. 187 F.3d 862, 865 (8th Cir. 1999); Spearman v. Ford Motor Co. 231 F.3d 1080, 1085 (7th Cir. 2000); but see also Etsitty v. Utah Transit. Auth., 502 F.3d 1215 (10th Cir. 2007); Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th Cir. 2006). 

  24. See Int’l Union v. Johnson Controls, 499 U.S. 187 (1991); Dothard v. Rawlinson, 433 U.S. 321 (1977). 

  25. Macy v. Holder, 2012 WL 1435995 (E.E.O.C.), or available online. Last visited June 10, 2013. 

  26. Price Waterhouse v. Hopkins, 490 U.S. 228. 

  27. Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085-86 (7th Cir. 1984). 

  28. See Tronetti v. TLC Healthnet Lakeshore Hosp., 2003 U.S. Dist. Lexis 23757 (W.D.N.Y. Sept. 26, 2003). 

  29. Holloway v. Arthur Anderson & Company, 566 F.2d 659, 661-63 (9th Cir. 1977). 

  30. Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004).