LGBT discrimination

Transgender Discrimination Banned in California, Even if Federal Protections Are Shaky

November 23, 2018 | by Nassiri Law

If you are a transgender person living in America today, chances are you have some grave concerns about the current political climate – specifically with regard to transgender discrimination in the workplace. As longtime Los Angeles gender discrimination attorneys, it’s been difficult to see certain federal-level protections wane or threatened, especially because they weren’t all that solid to start. What you need to know as a transgender person in California is that this state does have protections, even if federal authorities ultimately decide to narrow the definition of gender for Title IX purposes, which bans discrimination in education, and Title VII federal civil rights employment discrimination. As L.A. employment attorneys can explain, these protections are based on five different categories – which includes gender.

Federal Government May Limit Transgender Employee Protections

A number of recent reports indicate that the U.S. Department of Health and Human Services is getting ready to formally present a proposal to the Justice Department before the close of this year that would more strictly define gender as binary – a biological, immutable condition defined by the genitalia with which one is born. Of course, almost every transgender person will tell you that they did not “choose” to their gender identity, but rather it chose them. This is very similar to sexual orientation, though this is a wholly separate issue from gender identity.

Despite the fact that the American Medical Association has debunked any notion that trans people aren’t fit to serve in the U.S. military or that gender dysphoria (distress arising from a perceived mismatch of the gender with which one was born versus the one with which one identifies) is a problem that can’t be alleviated with care. Some political groups have gone so far as to disguise junk science from an anti-LGBTQ group (American College of Pediatricians) as the longstanding, respected and gender-affirming American Academy of Pediatrics. Continue Reading ›

Independent Contract Employees Lack Critical Workplace Discrimination Protections

October 28, 2018 | by Nassiri Law

U.S. and California law provide very specific discrimination protections for employees who have historically been the greatest targets. Typically, these are women, racial minorities, older workers and those with disabilities. We’ve come a long way in the last 50- to- 60-years in ensuring California workers aren’t fired, demoted, transferred or miss out on key benefits because of prejudice by their employers. However, a key component of those protections is the worker’s classification. Those who are classified as “employees” are entitled to a host of employment law protections – everything from minimum wages and regular mandated breaks to reasonable accommodations if one one’s pregnancy requires restrictions. Los Angeles employment attorneys often have to explain another important protection denied independent contractors: Anti-discrimination laws.

Approximately 1 in 7 jobs in America is classified as independent contractor or some other contingent-employment arrangement. This amounts to millions of Americans – roughly 14 percent in all, according the U.S. Bureau of Labor Statistics – whose work as freelancers, consultants, temporary agency laborers and contractors who are denied protections against discrimination for their age, race, gender, religion and disability. So for instance, while most employees can expect to be protected from age discrimination from their employer when they reach the age of 40, a freelancer has no such guarantee.

There are some analyses that suggest the unprotected workforce could be even larger. For instance, the California-based Staffing Industry Analysts recently released information indicating roughly 30 percent of American workers could be counted in the “contingent workforce.” The U.S. Equal Employment Opportunity Commission makes it clear that anti-discrimination statutes exempt independent contractors as well as those working for employment agencies. Sometimes, anti-discrimination protections depend on the number of employees a company has. Continue Reading ›

Transgender Employment Discrimination Standards Tested in U.S. Courts

August 31, 2018 | by Nassiri Law

California is one of the few states that prohibits transgender discrimination in housing and employment. Cal. Gov’t. Code Section 12940(a) stipulates it’s unlawful for an employer to refuse to hire or employ someone or to discharge from employment or to discriminate against a person in compensation or in terms, conditions or privileges because of one’s gender identity.

However, many other states lack such protections, and now, one transgender discrimination in employment case out of Michigan could go before the U.S. Supreme Court, potentially making it lawful for workplaces around the country to take adverse employment actions against workers on the basis of their sexual identity.

As reported by Lawrence-Journal World, the Kansas Attorney General is joining with officials from 15 other states, asking the U.S. Supreme Court to expressly declare transgender workers not protected by federal workplace anti-discrimination laws. In particular, they are requesting the U.S. Supreme Court reverse a ruling by the 6th U.S. Circuit Court of Appeals in Michigan, which decided the word “sex” used in the federal Civil Rights Act of 1964 – particularly in Title VII – does include transgender status and gender identity. Continue Reading ›

Almost Half of LGBTQ Employees Still Hide Identity at Work

July 7, 2018 | by Nassiri Law

Imagine not being able to put a photo of your family on your desk. Think about what you would do if you couldn’t talk about simple weekend plans with co-workers. What would you do if you couldn’t even mention the name of your significant other? This is the reality for almost half of LGBTQ employees nationwide, according to a Human Rights Campaign report. A survey of workers of all sexual orientations found that of those who identified at LGBTQ, 46 percent still hide their orientation at work, a number that has remained about the same over the past 10 years. A Human Rights Campaign Report from 2008 tallied 50 percent of LGBTQ respondents as being closeted in the workplace.

Further data collected from those who identified as LGBTQ paints a pretty clear picture as to why many still hide their private lives. About 20 percent said they were told to dress in a way that was more aligned with their perceived gender. Over 50 percent said they had heard jokes about homosexuality at work at least once in while. These stats likely have contributed to the next data point: 31 percent report feeling depressed or unhappy in the workplace. Continue Reading ›

Sam’s Club Employee Sues for Transgender Discrimination

January 13, 2018 | by Nassiri Law

Last year, the California Department of Fair Employment and Housing put in place new regulations to protect employees from discrimination for gender identity and gender expression in the workplace, as outlined in the CA Code of Regulations, Title 2, sections 11030, 11031, and 11034. We are proud that California has always been on the forefront of such protections and our legal team continues to push for rights of groups vulnerable to workplace discrimination.

However, we know many people throughout the country remain a target for gender expression discrimination.

The attention of the nation is currently on Wal-Mart Stores Inc., which recently was sued by a transgender woman, who alleges she was fired after complaining to management about harassment she said she experienced on the job. She also filed charges with the U.S. Equal Employment Opportunity Commission.

According to an article from Reuters, plaintiff worked for 11 years at a Sam’s Club (owned by Wal-Mart) in North Carolina. She claims to have endured harassment in her supervisor position in the company, alleging employees called her numerous slurs and her boss made unwanted physical advances. She alleges she was fired in 2015 after she complained about the hostile work environment, which she said had been escalating for a number of years since she began her female gender expression in 2008. Continue Reading ›

Employment Discrimination Increases for LGBTQ People of Color

January 3, 2018 | by Nassiri Law

For many California residents, employment discrimination is an all too common part of life, with experiences ranging from subtle biases to outright threats, violence or loss of opportunities to advance.

Certain groups receive the brunt of this treatment more than others: Women, the elderly, people of color, LGBTQ community members, those from certain foreign nations or followers of some religions. But the discrimination compounds for people who fit more than one of these categories. This inter-sectional discrimination can be seen in particular among people in a racial minority group as well as the LGBTQ community.

According to a recent poll by the Harvard T.H. Chan School of Public Health, NPR, and the Robert Wood Johnson Foundation, people of color said they had been discriminated against at twice the rate as white respondents for being LGBTQ when applying for jobs, as well as in police interactions. Continue Reading ›

U.S. Supreme Court Declines to Hear LGBT Work Discrimination Appeal

December 12, 2017 | by Nassiri Law

In a disappointing move for supporters of LGBT civil rights, the U.S. Supreme Court turned down the opportunity to weigh an appeal by a security guard in Georgia who alleged she was harassed at work and ultimately forced to resign due to her sexuality. This refusal to hear the case means the court means there will be no review of federal law and interpretation as to whether laws against gender-based bias also protect lesbian, gay bisexual and transgender individuals for their sexual orientation.

It also means that the ruling issued by the U.S. Court of Appeals for the 11th Circuit earlier this year. Had the highest court in the land chosen to review it, such a ruling might have settled the question that has been divided several lower courts: Does Title VII, banning gender discrimination, also protect people on the basis of their sexual orientation. Title VII does bar discrimination against workers based on religion, race, color and national origin, but makes no specific mention of sexual orientation. A number of states (including California) have enacted laws that protect LGBT workers, but at the federal level, there is no such guaranteed protection.

Five years ago, the U.S. Equal Employment Opportunity Commission, which enforces Title VII, began arguing that discrimination against LGBT employees is a violation of federal law. But that was a position taken under the Obama administration. This last summer, Trump administration officials argued the very opposite in the case of a skydiving instructor who lost his job after revealing to a customer he was gay. A ruling on that case is still pending. Continue Reading ›

Constructive Discharge by Employers in Orange County

November 6, 2017 | by Nassiri Law

Everybody knows what it means to be fired from a job. However, sometimes an employer aiming to get rid of an employee won’t actually fire the person. Instead, they create or allow to persist a hostile work environment that would force any reasonable person to quit. The law calls this a “constructive discharge,” and it’s illegal.

Constructive Discharge Employment Cases in Orange County and Los Angeles

According to a recent news article from the Huffington Post, constructive discharge cases are a lot more common than one might think, and they can be devastating to the employees who must work in these harsh environments. This article focused on a complaint recently filed in Orange County Superior Court. Continue Reading ›

Sessions’ DOJ: Law Doesn’t Protect Gay Employees

August 30, 2017 | by Nassiri Law

Under the direction of new U.S. Attorney General Jeff Sessions, the Department of Justice has filed papers in court arguing federal civil rights law doesn’t provide civil rights protections against discrimination for employees on the basis of sexual orientation. This is in stark contrast to the directives of President Barack Obama’s administration.

The move was an unusual one, wherein the department asserted its authority in a federal case pending in New York. It involves a basically private dispute between a worker in New York and his employer over the issue of gay rights and LGBTQ discrimination.

In a friend-of-the-court brief, the Justice Department wrote that the 1964 Civil Rights Act, which prohibits workplace discrimination on the basis of religion, gender, national origin, race and color, does not, as a matter of law, protect those based on sexual orientation. The DOJ wrote that this is an issue that has “been settled for decades,” and that any effort to amend or alter the scope of Title VII needs to be directed to members of Congress, rather than the courts. Continue Reading ›

New Protections for Transgender and Gender-Nonconforming Employees Take Effect

August 13, 2017 | by Nassiri Law

California has long been a pioneer of gender rights in the workplace. Since 2011, gender expression and gender identity have been protected classes under California’s anti-discrimination law. And on July 1, 2017, new employment protections for transgender and gender-nonconforming employees took effect in California. The Department of Fair Employment and Housing now enforces regulations which expand protections for gender identity and gender expression in the workplace. According to The National Law Review, the following provisions are now effective:

Gender identity has been expanded to include those employees who are transitioning. Activities during the transition phase are protected, such as: changes in name or pronoun usage; use of bathroom facilities; and medical procedures associated with a transition (such as hormone therapy or surgeries). Employers may not discriminate against transitioning employees for engaging in any of these activities, or other actions related to the transition.
Employers may not inquire about, or request documentation about, an employee’s gender, gender expression, or gender identity. Employers can also not request that employees provide such information unless it is on a voluntary basis for record keeping purposes.
Single-occupancy bathroom facilities under an employer’s control must be labeled with gender neutral terms (such as “unisex”, “gender neutral”, or “all gender restroom”). Employees must be allowed to use the facilities which correspond to their gender identity, not the gender assigned to them at birth.
Employees must be allowed to carry out job duties which correspond with their gender expression or gender identity – not the gender assigned to them at birth.

The Press-Enterprise also notes that employers cannot impose any standards of grooming, dress, or appearance which are inconsistent with an employee’s gender identity.