Transgender Hires Prove Challenging for Employers

Transgender Hires Prove Challenging for Employers

Under the California Fair Employment and Housing Act (FEHA), workplace discrimination based on gender identity and gender expression is prohibited.

In a client alert, Seyfarth Shaw partner Laura Maechtlen and attorney Kristen Verrastro say the Sacramento Superior Court recently allowed an employee to pursue a claim against American Pacific Corporation alleging the company used gender identity and expression to restrict access to restroom and changing facilities.

The California Department of Fair Employment and Housing (DFEH) brought the case on behalf of Nick Lozano, who self-identifies as a transgender male but was born female.

After successfully applying for a job as a male, Maechtlen and Verrastro say, Lozano told human resources he was transitioning from female to male, asking to use the men’s restroom and locker room. They say American Pacific asked Lozano to delay the start date until the reassignment surgery was complete and use female facilities until then.

The attorneys say the company argued the FEHA didn’t prohibit requiring restroom and changing room access based on an employee’s birth-assigned gender. However, the court refused to dismiss the suit.

The attorneys say the company plans to appeal. They say cases involving gender identity and expression are increasing, noting the Equal Employment Opportunity Commission interprets the sex discrimination provisions of Title VII to forbid discrimination against transgender individuals.

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