California LGBTQ Employment Rights

No. The California Fair Employment and Housing Act (FEHA) makes 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.

Although the U.S. Supreme Court has made clear that federal employment law also prohibits discrimination based on sexual orientation and gender identity, during the Trump administration we do not recommend attempting to file discrimination complaints on those bases with the Equal Employment Opportunity Commission (EEOC) or any other federal agency.

The majority of employees in California are covered under FEHA, but there are a few types of employees who are exempt from this law:

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

Also, you generally cannot make a discrimination claim under FEHA if you are an independent contractor rather than an employee. However, FEHA’s protections against harassment do cover independent contractors, and another California law prohibits terminating or refusing to contract with an app-based driver based on sexual orientation, gender identity, and/or gender expression.

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. In California, FEHA protects you from harassment by supervisors, co-workers, or even customers and other third parties.

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

Yes. California law covers 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. Legal Aid at Work and Beyond Binary Legal have published a Transgender and Nonbinary Workers’ Toolkit that may be helpful in this situation.

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.

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. An employer can only require use of your legal name if there is a specific legal reason, such as on a tax form that must match the name in which you will file your taxes, or if your role requires posting in the workplace a professional license or certification that was issued in your legal name. 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.

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-user restrooms, they must be labeled as “All Gender,” “Unisex,” “Gender Neutral,” or something similar.

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.

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.

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

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. You can also contact the Health Consumer Alliance for help understanding your options.

No. Under California law, same-sex spouses and registered domestic partners are entitled to the same health care coverage as different-sex spouses.

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.

The California Civil Rights Department has published an FAQ that explains employment discrimination law generally: https://calcivilrights.ca.gov/employment/#faqA as well as a poster and a fact sheet that detail transgender people’s rights in the workplace: https://calcivilrights.ca.gov/Posters/ .

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 (but if they contain confidential information, don’t share them with anyone besides your attorney).

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 a private attorney or legal services organization who can help you understand your options, including whether it would make sense to file a lawsuit.

Given limited resources and our focus on making policy change, the ACLU is generally not able to take on representing or advising people in individual employment cases, but we may be able to help you find others who can provide 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 California Civil Rights Department (CRD), the state agency that enforces the laws described here. Filing a CRD complaint is free, and you don’t necessarily need a lawyer to represent you. https://calcivilrights.ca.gov/ComplaintProcess/