California LGBTQ Employment Rights

Jun 16, 2020

Page Media

Rainbow Flarg

Can my employer legally discriminate against me for being LGBTQ?

No. Both the California Fair Employment and Housing Act (FEHA) and Title VII of the federal Civil Rights Act (Title VII) make it illegal for an employer to fire, demote, fail to hire, fail to promote, harass, or otherwise discriminate against you (such as by paying a lower wage or denying benefits that other workers receive) because of your sexual orientation, gender identity, and/or gender expression.  

Are there any exceptions to the rule that California and federal laws protect all LGBTQ workers?       

The majority of employees in California are covered under these laws, but there are a few types of employees that are exempt from the laws:

  • Certain employees of religious entities like churches and mosques; and
  • Employees of very small employers. California discrimination protections described here apply to entities with at least 5 employees (and the harassment provisions apply to every entity, even if you are the only employee); and federal discrimination protections apply to entities with at least 15 employees.

Can my employer harass me for being LGBTQ?

No. Harassment is a form of discrimination that occurs when an employer (or a co-worker with the employer’s knowledge) subjects you to a hostile, offensive, or intimidating work environment because of your sexual orientation, gender identity, and/or gender expression. To be illegal, the behavior must be unwelcome and so harmful that it interferes with your ability to do your job. The law protects you from harassment by supervisors, coworkers, or even customers and third parties.

Is my employer required to respect my non-binary identity?

Yes. California law recognizes gender non-conforming and non-binary identities and requires that employers respect all gender identities and expressions. 

Am I protected if I come out at work?

Yes. If you are not already out, coming out is your decision. Your employer cannot discriminate against you or mistreat you because you come out.

Am I protected if I transition on the job?

Yes. California and federal law cover an employee’s transgender and transitioning status. You have a right to tell your employer that you are transitioning; and your employer cannot discriminate against you or mistreat you because you transition.

If my employer repeatedly addresses me by the wrong name and pronoun, is that harassment?

You have the right to be addressed by your lived name and pronouns, regardless of whether you have legally changed your name and gender marker. If your employer consistently and intentionally addresses you the wrong way after you have informed them of your correct name and pronoun, that could be illegal harassment.

Do I have the right to use the restroom at work that corresponds with my gender identity?

Yes, you do. All employees have a right to safe and appropriate restroom facilities. Your employer cannot dictate which restroom you use.

If your place of employment has single-stall restrooms, they must be labeled as “All Gender,” “Unisex,” “Gender Neutral,” or something similar. 

During an employment interview, can I legally be asked to state my sexual orientation, gender identity, and/or gender expression?

No. An interviewer in California cannot legally ask a job applicant about their sexual orientation, gender identity, or gender expression – either directly or indirectly, such as by asking questions about the applicant’s body or spouse. An employer also cannot require you to disclose your gender on a job application or make your gender identity a condition of employment. 

What if I am not LGBTQ, but my employer mistreats me because they think I am?

California law bans discrimination based on “actual or perceived” sexual orientation, gender identity, and/or gender expression, which means you are protected even if your employer is mistaken about your identity.

Can my employer discriminate against me for having an LGBTQ family member or friend?

No. Under California law, it’s illegal to discriminate against someone because they associate with an individual who is LGBTQ.

Can my employer-provided health plan exclude gender-affirming care?

No. Under California law, Medi-Cal and employer-provided health insurance must cover medically necessary gender-affirming care just like they cover other medically necessary treatments. If you have been denied treatment by an HMO or other managed health care plan, you can contact the Department of Managed Health Care to appeal: https://www.dmhc.ca.gov/FileaComplaint/IndependentMedicalReviewComplaintForms.aspx. Federal law also prohibits self-funded health plans from discriminating. If you encounter an exclusion under one of these health plans, contact the ACLU or another legal organization for help understanding your options. 

Can my health insurance plan exclude coverage for my same-sex spouse or registered domestic partner?

No. Same-sex spouses and registered domestic partners are entitled to the same health care coverage as different-sex spouses.

Can my employer legally retaliate against me because I complained about discrimination and/or harassment?

No. It is illegal for an employer to punish an employee who complains about discrimination or harassment in the workplace. Unfortunately, this type of response is common. If you are being retaliated against because you complained about discrimination and/or harassment, be sure to follow the steps below to document the retaliation and seek legal assistance.

Where can I learn more about my rights in the workplace?

The Department of Fair Employment and Housing has published an FAQ that explains employment discrimination law generally: https://www.dfeh.ca.gov/employment/#faqA as well as a fact sheet for employers that details transgender people’s rights in the workplace: https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/11/DFEH_E04P-ENG-2017Nov.pdf.

What should I do if I am being discriminated against, harassed, and/or face retaliation?

  • DOCUMENT what’s happening. Take notes on who said what when where, and who else may have witnessed it. Save any relevant emails, texts, or papers.
     
  • SPEAK UP to try to solve the problem, if you feel safe doing so. This might mean talking to your supervisor, human resources department, personnel office, and/or union representative. If your employer or union has a grievance procedure, consider using it.
     
  • SEEK HELP from the ACLU or another civil rights legal organization. Given limited resources and our focus on making policy change, we are not able to represent most of the people who contact us with legal problems, but we may be able to help you understand your legal options and refer you to partner organizations who may be able to provide more assistance.

    Contact ACLU SoCal at https://action.aclu.org/legal-intake/socal if you are in Los Angeles, Orange, Kern, San Bernardino, Riverside, Ventura, Santa Barbara, or San Luis Obispo County.

    Contact ACLU NorCal at https://www.aclunc.org/our-work/get-help if you are in Northern California.

    Contact ACLU-SDIC at https://www.aclusandiego.org/legal/request-legal-assistance if you are in San Diego or Imperial County.
     
  • TAKE ACTION by filing a complaint with the Department of Fair Employment and Housing, the state agency that enforces the laws described here. Filing a DFEH complaint is free, and you don’t necessarily need a lawyer to represent you. https://www.dfeh.ca.gov/ComplaintProcess/