Sexual Orientation and Gender Identity Discrimination and Harassment

Download this page as a PDF

Is it legal for an employer to discriminate against me because of my sexual orientation?

No, your employer may not fire, fail to hire, or unlawfully discriminate against you in any way because of your sexual orientation or perceived sexual orientation. Federal law prohibits discrimination at workplaces with 15 or more employees, but California law prohibits discrimination if the employer has 5 or more employees.

Is it legal for an employer to discriminate against me because of my gender identity?

No, your employer may not fire, fail to hire, or unlawfully discriminate against you in any way because you are transgender or gender nonconforming (including identifying as nonbinary). This includes a person’s transitioning status. Federal law prohibits discrimination at workplaces with 15 or more employees, but California law prohibits discrimination if the employer has 5 or more employees.

I feel I am being harassed at work – is that against the law?

Harassment is against the law. Harassment is when a supervisor, co-worker, or a third party (such as a customer) subjects you to hostile, offensive, or intimidating behavior because of your sexual orientation or gender identity (or another protected identity such as race, national origin, or disability). Federal law prohibits harassment at workplaces with 15 or more employees, but California law prohibits harassment if the employer has 1 or more employees. In California, unwelcome behavior becomes harassment when it 1) is offensive, humiliating, or distressing; and 2) makes it harder for you to do your job as usual, affects your emotional tranquility in the workplace, or interferes with and undermines your personal sense of well-being. Even a single incident can constitute harassment under California law.

Am I entitled to be addressed by the name and pronouns that correspond to my gender identity?

Yes, and your employee records and identification documents should be changed to reflect the name and pronouns that correspond to your gender identity. If you have not yet legally changed your name, your employer may not be able to change your payroll documents; however, the employer must keep that name confidential, and your supervisors and co-workers must use your chosen name and pronouns. If you need help with a legal name or gender change, please contact your local LGBTQ Center for advice on whether they can help you. Although it is unlikely that one honest mistake in addressing you with the wrong name or pronoun is unlawful, if your coworkers, supervisors or third parties (like customers) repeatedly address you with the incorrect name or pronoun your employer may be liable for unlawful discrimination and/or harassment.

Am I entitled to use the restroom and locker rooms (and other applicable facilities) that correspond to my gender identity?

Yes. Also, your employer may provide a gender-neutral restroom for employees to use, but you cannot be denied the right to use the restroom that best corresponds with your gender identity. Ideally, employers will always provide an easily accessible gender-neutral restroom for use by any employee who chooses to use it. However, no employee should be compelled to use such a restroom if a gender-appropriate restroom is available. If an establishment, including businesses and public agencies, have single-user restrooms, they must label those restrooms as “all-gender” or “gender-neutral.”

Can I be required to comply with a dress code?

Yes, the law allows an employer to enforce reasonable workplace appearance, grooming, and dress standards, as long as employees are allowed to dress in a manner consistent with their gender identity. This means that if your employer enforces dress codes that are based on gender, the dress code must be enforced based on standards appropriate for your gender identity. For example, a transgender woman who presents as female has a right to dress according to the gender-specific dress code for women.

Do any other laws protect me from sexual orientation or gender identity discrimination at work?

a. Hate violence protections

The California Ralph Civil Rights Act prohibits acts of violence or threats of violence because of, among other traits, a person’s actual or perceived sexual orientation, gender, gender identity, or gender expression. This includes verbal or written threats, physical assault or attempted assault, graffiti, and vandalism or property damage. If your supervisor, co-worker, or another person threatens or assaults you or your property, you can make a police report. You may also seek a restraining order and/or file a complaint with the state.

b. California political activity laws

California Labor Code Sections 1101 and 1102 prohibit employers from preventing an employee’s political activity, or punishing an employee due to that employee’s political activity. As an LGBTQ+ employee, “coming out” is a protected political activity—including a person’s gender-affirming transition. Likewise, if you disclose your gender identity or openly transition, you may argue that these actions are protected political acts. These laws may be especially important for employees who work for employers with less than 5 employees because those employees are not covered by the Fair Employment and Housing Act (FEHA), California’s law prohibiting discrimination in the workplace.

c. Local laws

Many localities in California also have laws that prohibit sexual orientation and gender identity discrimination in employment, including Los Angeles, San Francisco, Oakland, Sacramento, San Diego, and the County of Santa Cruz.

Usually, these ordinances cover only employers within the locality, although some (such as San Francisco) extend coverage to employers who do business with the municipality. San Francisco has an agency that regularly investigates complaints of gender identity discrimination. That agency, the San Francisco Human Rights Commission, can investigate your complaint of discrimination and mediate a settlement between you and your employer. Other localities may have human rights commissions, civil rights offices, or equal employment officers that may assist you with a complaint under the local ordinance—check with your City or County Clerk.

Unfortunately, local laws are often not very helpful to employees because California law bars you from actually bringing a lawsuit under local law. Therefore, if mediation does not result in a satisfactory resolution, the human rights commission or similar agency cannot do anything more to enforce the law, and you have no other recourse under local law. Instead, you must pursue your complaint with the appropriate state or federal agency.

Do anti-discrimination laws apply to all employers?

California’s FEHA prohibits employers with five or more employers from discriminating against job applicants and employees. It applies to all public and private employers, labor organizations, employment agencies, state licensing boards, and state and local governments. California’s anti-harassment laws apply to private employers, state governments, local governments, employment agencies, labor unions, and state licensing boards, no matter how many employees they have. This means your employer is responsible for creating a harassment-free workplace for you. The

FEHA prohibits harassment of employees, job applicants, unpaid interns, volunteers and contractors.

If you work for the federal government, the federal anti-discrimination and harassment law, Title VII, applies instead. Title VII applies only to employers that have 15 or more employees.

The California Labor Code sections apply to all employers, regardless of their size, except the federal government.

Local laws also may have employer-size restrictions. Be sure to check what restrictions apply to local laws prohibiting sexual orientation discrimination where you work.

If your employer is a religious institution, it is possible that some of the anti-discrimination and harassment protections will not apply to you. If this is the case, please contact us for more information.

What if my co-workers harass me?

Your employer can be liable for harassment committed by co-workers and third parties (like customers) where the employer knew about or should have known about the harassment.

What kinds of questions may an employer ask about my sexual orientation, gender identity, or gender-affirming transition process?

The California Constitution protects you from intrusive and inappropriate questions from your employer that are not work-related. Employers may ask about your employment history, and may ask for personal references, in addition to other non-discriminatory questions. An interviewer should not ask questions designed to detect your sexual orientation or gender identity, including asking about your marital status, spouse’s name, or relation of household members to one another.

Employers may not ask questions about your medical needs or whether you plan to have gender-affirming surgery. Your employer, including your colleagues, may not ask about your anatomy, genitalia, or sex assigned at birth. The only time an employer may ask questions about private or medical issues is when they have a business reason for wanting to know the information that is greater than your interest in keeping the information private. If you need to take a medical leave of absence for gender-affirming treatment, your employer may be able to request additional information in order to provide medical leave or reasonable accommodations. Speak with your doctor about what information is appropriate and necessary to disclose.

Your employer also may not make a job or job offer contingent on proof of your gender or gender identity. For instance, even if a job application asks for your gender, that question cannot be mandatory and you may leave it blank.

Can I get time off for medical reasons?

If you experience a disability or serious medical condition, you may be eligible to take job-protected time off. For more information about medical leave laws, consult our publication, Disability/Caregiving + My Job. This includes time off for care related to a medically necessary gender-affirming transition.

For more information about reasonable accommodations, consult our fact sheet, Disabilities in the Workplace. These include reasonable accommodations related to a gender-affirming transition.

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

No, under California law, employer-provided health plans must cover medically necessary gender-affirming care.

What are my rights if I am undocumented?

Both documented and undocumented immigrants are protected against harassment and discrimination under the law and have the right to file harassment and discrimination claims. If you are undocumented, it is a good idea to consult with an immigration lawyer before filing a complaint to discuss any immigration consequences for reporting a violation. Some online resources for finding an immigration lawyer:

  • American Immigration Lawyers Association (available in Spanish and searchable by zip code) – ailalawyer.com

Undocumented immigrants may qualify for immigration relief as crime victims under the U visa program if the harassment or discrimination was also a crime (like assault or rape). You should consult an immigration lawyer to discuss this possibility.

Undocumented workers do not qualify for Unemployment Insurance benefits. However, citizenship and immigration status do not affect eligibility for other state benefits like Paid Family Leave or State Disability Insurance. Therefore, undocumented workers may be eligible for Paid Family Leave or State Disability Insurance. Consider consulting with an immigration lawyer before deciding whether to apply for these benefits.

What to do if you are being discriminated against or harassed:

Speak to a supervisor or manager or to your employer’s human resources or personnel department

  • Try to find your employer’s anti-discrimination and/or anti-harassment policy. Employers may provide this to employees when they start the job or have it posted on a wall in the break room or a similar central location. This information may also be in your employee handbook. This policy should state the complaint procedure and the name of the person to whom you should complain.
  • You usually should try to resolve the situation informally by first speaking with a supervisor, manager, or someone in your employer’s human resources or personnel office. If you are aware of your employer’s complaint procedure, you should try to follow it, unless you have a good reason not to do so.
  • In cases of harassment, promptly notify a manager or supervisor (unless that person is the harasser). Follow up with a written complaint. Ideally, your complaint should describe what happened in as much detail as possible, including dates (or approximate dates), places, and descriptions of the incidents. If you are comfortable doing so, describe how these events made you feel (angry, disgusted, afraid, embarrassed, etc.) and your thoughts about what happened. State what you want to happen next and keep a copy of the complaint. If you do not complain, the employer might later avoid liability by saying that it did not know about the harassment.
  • If you belong to a union, talk with your union representative.

Document the discrimination or harassment

  • Keep a journal (preferably at home) recording incidents of suspected discrimination or harassment. Write down dates, times, and witnesses to any such incidents.
  • Keep copies of all important letters and documents that you send to your employer or that your employer sends to you. You also should keep any letters, emails, text messages, voicemails, photographs, videos, or other communications related to the harassment or discrimination. You should keep these materials in a safe place not at your worksite. For example, forward emails to your personal email account or to a friend, take screenshots of text messages, and keep copies of other materials at home.
  • If in doubt, do not sign anything without legal advice, especially documents that require you to agree to waive your right to bring a complaint, or require you to arbitrate disputes with an employer.

If you are not able to resolve your situation informally:

  • You may file an employment discrimination and/or harassment complaint with the Civil Rights Department (CRD) or the Equal Employment Opportunity Commission (EEOC), which may investigate your complaint and try to resolve the problem. There is no fee to file a CRD or EEOC complaint, and you can do so without an attorney.
  • You can generally file with either agency, but sometimes you may only be able to file with the CRD. For instance, at the CRD, you may file a harassment complaint against your employer and the individual harasser or just against the individual harasser. At the EEOC, you may only file a complaint against your employer. Another example of when you may only be able to file with the CRD is if the time to file with the EEOC has already passed because the agencies have different deadlines. Finally, if your employer only has a few employees, you will probably have to file with the CRD because the EEOC only accepts complaints against employers with 15 or more employees.
  • You must file your complaint with the CRD within three years, the Labor Commissioner within 6 months, or the EEOC within 300 days of the last act of discrimination or harassment. If you do not file a complaint within these time limits, you may lose your right to legal protection from the discrimination or harassment.
  • If the CRD or EEOC finds evidence of discrimination and is not able to reach a settlement between you and the employer, the agency may in rare occasions “prosecute” your case by holding a formal hearing or filing a lawsuit on your behalf. If the agency chooses not to prosecute your case, you will receive a “Right to Sue” notice from the CRD or EEOC. (You can also request a Right to Sue notice at any point in the agency’s investigation process, which will stop the agency’s investigation and enable you to proceed directly with a lawsuit.) Only after you receive a Right to Sue letter can you file your own lawsuit in court.
  • If you get a Right to Sue notice from the CRD, you must file a lawsuit within one year of the date of the notice. If you get a Right to Sue notice from the EEOC, you must file a lawsuit within 90 days of the date of the notice. If you do not file a lawsuit within this time limit, you may lose your right to file a lawsuit regarding the discrimination or harassment.
  • If you live in an area with a local anti-discrimination law, you can file a complaint with the local agency, such as the Human Rights Commission in San Francisco, which may investigate and mediate your complaint.
  • If you file a complaint with the Labor Commissioner, and you do not settle the matter with your employer, the Labor Commissioner will make a determination about whether discrimination occurred. Before making a determination, the Labor Commissioner may hold a hearing about your complaint; you and your employer each have the right to bring an attorney or other representative with you to the hearing.
  • After the Labor Commissioner makes a determination, either you or your employer may appeal the decision within 10 days. You also have the right to file a complaint against your employer in court, either at the same time you file your complaint with the Labor Commissioner, or you may file in court after the investigation, if the Labor Commissioner dismisses your complaint.

Where to file a complaint:

  • EEOC: To file a complaint with the EEOC, call the EEOC at (800) 669-4000 to discuss your situation and make an appointment, or file online at eeoc.gov/employees/howtofile. If you prefer to file in person, please visit an EEOC office near you. For office locations, visit: www.eeoc.gov/field/index.cfm.

What if I am fired, disciplined or treated worse after complaining about discrimination or harassment?

The law prohibits retaliation against someone who complains about discrimination or harassment in the workplace. Retaliation may include actions such as terminating you, moving you to less favorable assignments or shifts, making undeserved negative evaluations, or intensifying the original harassment. If anyone (including a co-worker or supervisor) retaliates against you for complaining about unlawful discrimination at your workplace, you can file a retaliation complaint with the CRD, EEOC, or Labor Commissioner. That complaint is separate from the original discrimination complaint, if any, you made with the CRD, EEOC, or Labor Commissioner. Note that the employer can be held liable for retaliation, but the individual who has retaliated against you can generally not be found personally liable for retaliation.

To file a retaliation complaint, you do not have to prove that the discrimination or harassment you complained about was illegal. If you had a “good faith” belief that the discrimination or harassment was unlawful and you complained about it, that counts as protected activity for proving retaliation. Also, participating in an investigation of a discrimination or harassment complaint is protected activity.

Disclaimer

This fact sheet is intended to provide accurate, general information regarding legal rights relating to employment in California. Yet because laws and legal procedures are subject to frequent change and differing interpretations, Legal Aid at Work cannot ensure the information in this fact sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency about your rights in your particular situation. For further information about your employment rights, please call: The Workers’ Rights Clinic 415-864-8208 (SF Bay Area) or 866-864-8208 (Toll Free in CA). Legal Aid at Work delivers on the promise of justice for low-income people. We provide free direct services through our clinics and helplines. We offer extensive, free online legal information and provide trainings to community groups, unions, and attorneys; we litigate individual and class actions; and we advocate for new policies and laws. www.legalaidatwork.org.

Last updated: October 2024