Hiring and Employing Transgender Workers

California law prohibits workplace bias based on an employee’s gender identity, which encompasses employees who identify themselves, or are identified by others, as transgendered.

As a result, California employers should take steps to implement nondiscrimination policies that protect transgender workers, as well as to promote tolerance and respect in the workforce regardless of an employee’s gender identity. This may be easier said than done, as many generational, cultural, and religious factors can serve as obstacles to a harmonious workplace.

Who Is a Transgender Employee?

The term “transgender” refers to a person who self-identifies, permanently or temporarily, with a gender that is different than the physical gender he or she was born with.

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The term encompasses:

• Transsexuals: People who have had sex reassignment surgery or who live permanently and exclusively as a gender other than their birth gender;
• Crossdressers and transvestites: People who dress according to the appearance norms of a gender different than their birth gender some or all of the time; and
• Genderqueer, intergender, or androgyne: People who identify with neither gender or with both genders.

Employment Law Considerations

It may sometimes be obvious that an employee or applicant is transgender. Other times, the employee or applicant may be very well assimilated into the chosen gender identity, and the employee’s birth gender will not be obvious at all.

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Under California law, there is no requirement that employees conform to the behavioral or appearance norms of a particular gender. The law also does not require employees to blend in or to make their transgender status less apparent to make others more comfortable.

California employers should take care that managers and supervisors know that it is unlawful to inquire into an employee’s status as transgender, both for current employees as well as applicants. It is also unlawful to harass, discriminate, or retaliate against an employee because of the employee’s transgender status.

With respect to dress codes, although employers are allowed to require a certain type or standard of dress generally, any dress code that dictates a particular uniform based on the employee’s birth gender should be avoided, and transgender employees should be permitted to dress in accordance with their chosen genders to avoid sex-stereotyping bias claims.

In addition, some transgender employees will have special medical needs if they are in the process of gender reassignment. Depending on the particular employee and the unique facts of his or her situation, gender reassignment surgery and drug regimens may qualify the employee as disabled. An expert should be consulted before denying an employee disability status or benefits in connection with gender reassignments.

Tomorrow, we’ll look at tips for promoting tolerance and respect for the transgender employees in your workplace, as well as how to deal with the practical issue of restrooms and dressing rooms.

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