News Item

TG People Protected In The Workplace In California

Oct. 9, 2002

Until recently, transgender people had little recourse from workplace discrimination and harassment. Even though advocates have long argued that transgender people should be protected by sex discrimination laws, courts largely ignored these arguments. Recently, courts and administrative bodies throughout the country - including California -
have recognized that discrimination against transgender and gender non-conforming people is a form of sex discrimination.

In response to this positive trend in the case law, the California Department of Fair Employment and Housing ("DFEH"), the state agency that receives and investigates all complaints of discrimination filed under California's anti-discrimination law, has recognized that it must accept complaints based on gender identity and/or gender
non-conformity discrimination.

The Basics of FEHA Coverage for TG People

The California Fair Employment and Housing Act ("FEHA") is a law that prohibits discrimination in employment and housing in California based on race, sex, religious creed, color, national origin, age, disability, pregnancy, medical condition, marital status, ancestry and sexual orientation. It is the state counterpart to the federal employment non-discrimination law, Title VII of the Civil Rights of 1964 ("Title VII"), but is broader in many respects. Under FEHA (and Title VII), transgender and gender non-conforming people are protected from discrimination on the basis of sex. Depending on the circumstances, transgender and gender non- conforming people may also be protected on the basis of disability and perceived sexual orientation under FEHA. For further explanation of these protections, contact one of the organizations listed below to receive the publication, "Gender Identity and Employment Discrimination." The types of discrimination prohibited by FEHA include: discharge, demotion and
refusal to hire, transfer to a less desirable position, failure to use appropriate names, pronouns and titles, failure to allow bathroom use according to gender identity, and harassment by co-workers, supervisors or management, among others.

Recognizing and Proving Discrimination

If you believe you have been subject to a negative employment action - such as demotion, transfer or non-promotion - because of your transgender status, you must be able to show that you were treated differently than other similarly situated, non-transgender employees. For example, if you were hired before a non-transgender employee with the same experience, and this person was promoted over you, this person could be a similarly-situated non-transgender employee, or "comparator," for purposes of proving your case. You must also disprove any legitimate non-discriminatory reason your employer may provide as a reason for not promoting you (for example, poor work performance).

To prove a harassment case, you must show that: the harassing conduct is severe or pervasive; and the harassment was directed at you because of your sex. Isolated incidents are not enough. Physical touching or assault, for example, is considered severe: conduct occurring regularly for an extended period is considered pervasive. To show that you are the target of harassment "because of sex," you must show that the treatment was directed at you because of your sex, which includes gender stereotyping. For example, a co-worker refers to you with slurs such as "drag queen" or "he/she," or makes comments indicating that you do not meet stereotypical notions about how a man or woman should act, such as commenting on your hair, clothing, manner of speaking or walking, etc. The conduct need not be sexual in nature.

One note of caution: employment discrimination cases can be extremely difficult to prove. Although you may have suffered extreme or blatant discrimination, you may have little legal recourse if you cannot produce evidence in the form of comparators, witnesses, or other documentation of the discriminatory conduct.

Filing an Administrative Complaint

The first step in dealing with discrimination or harassment is to report it to your employer or union and to attempt to resolve the situation through your employer's internal complaint process and/or the union grievance process. An employer can't be held liable for harassment if the employer is not aware of what is happening.

If you cannot resolve an incident of discrimination or harassment with your employer internally, filing a complaint with the DFEH is the next step in securing legal protection. It is also a necessary precursor to filing a lawsuit. You must file a complaint with the DFEH within one year of the last act of discrimination. If you do not file within this
time, you lose your right to pursue your complaint with the agency or in court. There is no cost to file a complaint, and filing can be done without the assistance of an attorney.

To file a complaint, contact the DFEH Communications Center at (800) 884-1684 and state clearly that you believe you have been discriminated against because you are transgender or gender non- conforming. If your situation meets certain legal requirements (such as the filing deadlines noted above), you will receive an appointment time at the
DFEH office closest to you. You will also be sent a questionnaire by mail asking you to detail the facts of the discrimination.

In filling out the questionnaire, it is essential that you indicate each possible basis of discrimination (sex, disability, sexual orientation, etc.). It can also be helpful, although the form does not request it, to attach a one or two-page summary explaining why you believe what happened was discrimination. Be sure to include a description of any comparators, and the names and contact information of any witnesses to the discrimination or harassment. Preparing a timeline or a log of each incident, especially in the case of harassment, can also be very helpful. Include the date, time, a description of the incident, and any witnesses who observed the incident.

At the interview, you will meet with a consultant who is responsible for collecting information from you, drafting your discrimination complaint, and ultimately investigating your case. Retain the name and contact information of the consultant, because she will be your contact throughout the process.

During the interview, provide information about any comparators, the names and contact information of witnesses, and any documentary evidence, such as notes, email or letters from your employer. Be sure to indicate that you wish the DFEH to cross-file your complaint with the Equal Employment Opportunity Commission ("EEOC"), the federal
counterpart to DFEH, which enforces Title VII. Thanks to a work-sharing agreement between DFEH and EEOC, you need not file with both agencies, but you do need to make sure that DFEH cross-files your complaint in order to ensure that you retain your right to sue under federal law as well.

After the interview, you will receive a draft complaint in the mail. Check to make sure that the boxes for each kind of discrimination you are claiming are checked, that the date of the last incident of discrimination is correctly noted, and that the statement of facts is complete and accurate. Also make sure that the box indicating your desire to have the complaint cross-filed with the EEOC is checked, and that the complaint has been assigned both a DFEH and EEOC complaint numbers. Contact the consultant before you sign if any changes are necessary.

Once you sign and return the complaint, the DFEH will send a copy to your employer, who will be required to provide a written response within a few weeks. You may ask the consultant to read the employer's response to you over the phone. The response can provide important information about what you will have to prove to prevail; for example, refuting an employer's claim that you were not promoted because of poor work performance, rather than because you are transgender or gender non-conforming.

The DFEH will then begin its investigation, which can last for several months or up to a year. The investigation will be most effective if you can provide specific names and contact information for people that can corroborate your story. Check in with the DFEH consultant periodically to find out how the investigation is proceeding and to provide any additional information that may be useful.

At the end of the investigation, the DFEH will issue a "right-to-sue letter" that includes one of three findings: that the DFEH believes discrimination did occur, that the DFEH believes it did not, or that there is insufficient evidence for the DFEH to determine whether discrimination occurred. A finding of discrimination can be very useful in any lawsuit you may bring, but a finding of no discrimination or insufficient evidence does not preclude you from bringing suit. At any time during the investigation, you may request that the DFEH stop its investigation and issue you a right to sue letter.

You must file a lawsuit within one year of the date of the right-to- sue letter, or you will lose your opportunity to file. To file a lawsuit under federal law, you must do so within 90 days of receipt of the right-to-sue letter from EEOC.

For information or assistance in filing a complaint with DFEH, contact Chris Daley at the Transgender Law Project of the National Center for Lesbian Rights at (415) 392-6257 or Sheryl Harris at the Legal Aid Society - Employment Law Center at (415) 864-8848.