Protections against gender identity harassment

This week’s question comes from Lindsay in San Francisco:

Q: A coworker with whom I work closely recently began his social transition from presenting as the sex he was incorrectly assigned at birth to his true gender identity. Most of our colleagues have been respectful and encouraging during this process but there is one older woman who refuses to use my transitioning coworker’s correct name and pronouns, and occasionally makes other demeaning remarks. The woman’s offensive comments are distracting and make me uncomfortable, but I’m really concerned that my transitioning coworker will feel so ostracized he will end up quitting the job rather than deal with daily harassment. Should I share my observations with HR?

A: Lindsay, it is distressing to hear about your coworker’s alienating experiences at work as a result of his gender identity and expression. Fortunately, California’s employment discrimination laws protect employees against this kind of harassment and have been updated in the past two years to clarify and strengthen these protections.

Discrimination and harassment based on sex and gender is prohibited under the state’s Fair Employment and Housing Act (“FEHA”). Since 2011, FEHA has specifically included “gender identity” and “gender expression” as traits for which employees are protected from unlawful discrimination and harassment. Last year, the California Fair Employment and Housing Council promulgated detailed regulations to clarify how protections based on gender identity and expression should be applied. Finally, effective Jan. 1, 2018, all employers are required to conspicuously post a state-approved “Transgender Rights in the Workplace” poster and employers with 50 or more employees must include units on gender identity, gender expression and sexual orientation in mandatory sex discrimination trainings.

Under the 2017 regulations, gender identity is defined as a person’s “internal understanding of their gender,” including “male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth and transgender,” whether or not expressed in the employee’s external presentation. The regulations also specifically protect those in transition, perceived to be transitioning, or who have already transitioned, with “transitioning” defined as a process in which an individual begins living as the gender with which they identify, including changes in name usage, facility usage, participation in employer-sponsored activities, as well as any relevant medical procedures. Among its protections against discrimination, the regulations proscribe employers requiring gender documentation or imposing job duties, dress standards, or facility usage inconsistent with an employee’s gender identity or expression, except in very limited circumstances.

As discussed in previous columns, FEHA forbids workplace sexual harassment both in the form of “quid pro quo” offers or threats contingent on sexual favors and the much broader category of “hostile work environment” harassment. A hostile work environment may be created even in the absence of any specific adverse employment action when unwelcome conduct based on sex or gender either unreasonably interferes with an employee’s work performance or creates a workplace that would be intimidating, hostile, or offensive to a reasonable person in the employee’s shoes. A given conduct’s lawfulness is evaluated using all relevant circumstances and can be exacerbated by individual attributes such as a history of related abuse. Both the harasser and victim may be of any gender identity and the behavior need not motivated by sexual desire. Indeed, the complaining employee need not even be the intended target of the harassing conduct; a mere witness like yourself may have standing if they personally witness conduct such that their immediate work environment is permeated by sexual harassment.

As you can see, California law does prohibit the kind of harassment your transitioning coworker has been suffering if the colleague’s insults and misuse of former name and pronouns are pervasive enough to impact the workplace atmosphere or affect the complaining employee’s job performance. Generally, the “pervasive” standard requires that the harassment not be occasional, isolated, sporadic, or trivial and to either (1) have become part of the employee’s daily or weekly work routine, (2) undermine their ability to perform their job, or (3) cause them persistent distress. In your question, you indicate that you worry your coworker might quit his job to avoid the regular distress he experiences, a situation known as constructive discharge. He may indeed have a strong claim against the harasser and possibly your employer, if they have not undertaken all legally required duties to prevent harassment and promptly correct unlawful behavior of which they should reasonably be aware. A successful case will require the assistance of an experienced employment law attorney.

In the meantime, you should certainly encourage your HR department to look into the matter and reaffirm that your employer has duly updated its employee manual, workplace rights posters and, if the company employs 50 or more employees, mandated manager training curriculum in conformance with current California law.

Christopher B. Dolan is the owner of the Dolan Law Firm. Email Chris questions and topics for future articles

We serve clients across the San Francisco Bay Area and California from our offices in San Francisco, Oakland, and Los Angeles. Our work is no recovery, no free or also referred to as contingency-based. That means we collect no fee unless we obtain money for your damages and injuries.

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