October 21, 2021

Volume XI, Number 294

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New Landmark Federal Protections for LGBTQ Rights

In a 6-3 ruling on June 15, 2020, the U.S. Supreme Court held that "because of . . . sex" in Title VII of the Civil Rights Act of 1964 includes protections for gay and transgender employees. The decision, authored by Justice Neil Gorsuch, and described as "seismic," "sweeping," "huge," "surprising," and "game-changing," resolves a split among lower federal courts regarding whether Title VII provided such protections. Title VII itself does not reference transgender status or sexual orientation. But the U.S. Supreme Court unequivocally stated that "[t]he answer is clear" that it provides such protections, reasoning that an employer who discriminates against a gay or transgender employee necessarily does so in consideration of the employee's sex. The employees involved in the three cases combined in the decision would now be permitted to proceed with their Title VII claims against their former employers, on the grounds that they were terminated for being gay or transgender. However, given the length of time it has taken the cases to reach the Court, only one of the three plaintiffs is still alive.

For California employers, the Court's decision has little practical effect, as California law already prohibits employment discrimination based on sexual orientation, gender identity, gender expression, or against an individual who is transitioning, has transitioned, or is perceived to be transitioning. In this regard, the Court's ruling reinforces the policy justifications that motivated California to provide these protections years ago. Indeed, California regulations expressly define many of the protected classifications in Code Regs. §  11030 :

  • Gender Expression: "a person's gender-related appearance or behavior, or the perception of such appearance or behavior, whether or not stereotypically associated with the person's sex assigned at birth."

  • Gender Identity: "each person's internal understanding of their gender, or the perception of a person's gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person's sex assigned at birth, or transgender."

  • Transgender: "a general term that refers to a person whose gender identity differs from the person's sex assigned at birth. A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth. A transgender person may or may not identify as 'transsexual.'"

  • Transitioning: "a process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth. This process may include, but is not limited to, changes in name and pronoun usage, facility usage, participation in employer-sponsored activities (e.g., sports teams, team-building projects, or volunteering), or undergoing hormone therapy, surgeries, or other medical procedures."

Aside from statutory definitions, California employers should be mindful of the nuances in California law that involve LGBTQ employees and applicants, including:

  • The Gender Recognition Act: This law creates a non-binary gender marker for California birth certificates, drivers' licenses, and identity cards.

  • Posting: Employers are required to display a poster regarding transgender employees' rights in the workplace. Gov't Code § 12950. The Department of Fair Employment and Housing publishes an approved poster, accessible on its website.

  • Training: As part of an employer's obligation to provide anti-harassment training to employees, employers must also include training regarding harassment based on gender identity, gender expression, and sexual orientation. Gov't Code § 12950.1

  • Restrooms: Employers are required to allow employees to use bathrooms that correspond with their gender identity or gender expression. Single-occupancy facilities must also use gender-neutral language.  Code Regs. § 11034(e). Similarly, the Equal Restroom Access Act requires that all single-occupancy restrooms be available to everyone, including a visual designation that it is an all-gender facility.

  • Policies: Employers are prohibited from maintaining grooming or dress code policies that force employees to diverge from their gender identity or gender expression. Code Regs. § 11034(g).

  • Preferred Name: If an employee requests to be identified with a preferred gender name or pronoun (including gender-neutral pronouns), an employer must comply with the employee's request, unless use of the gender or legal name is required by law. Code Regs. §  11034(h).

Finally, employers should also review their workplace policies, including anti-harassment and discrimination policies, to ensure that they are written in compliance with the Fair Employment and Housing Act and associated regulations.

© 2010-2021 Allen Matkins Leck Gamble Mallory & Natsis LLP National Law Review, Volume X, Number 170
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About this Author

Alana Thorbourne Carlyle Labor Employment Attorney Los Angeles Allen Matkins Law Firm
Senior Counsel

Alana Thorbourne Carlyle works with employers to ensure that their policies, procedures, and actions comply with California’s evolving employment laws, which can vary across the state and from city to city. Her multi-faceted experience, including as an attorney in the employment litigation group of a large media company working with outside counsel, gives her a valuable client-side perspective. This experience allows her to converse more effectively and efficiently with clients and work in a team-oriented environment to problem-solve. She understands first-hand the...

213-955-5661
Dwight L. Armstrong, Employment litigator, Allen Matkins Law Firm
Partner

Dwight L. Armstrong is a partner in the firm's Orange County office. Dwight manages the firm's Labor and Employment Law Practice Group and is experienced in both litigation and transactional matters. He represents employers and management with a wide variety of employment litigation, ranging from wrongful termination and employment discrimination lawsuits to wage and hour class actions. Dwight has also handled numerous trade secret, no-solicitation and unfair competition cases. In addition, Dwight’s practice involves substantial preventative counseling and advice,...

949-851-5424
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