Sexual Orientation and Gender Identity Discrimination

Who you are and who you love should never cost you your job. California law protects employees from discrimination and harassment based on sexual orientation, gender identity and gender expression, with some of the strongest protections in the country.

On this page: What is protected · Examples · Transgender rights · Retaliation · What to do · FAQ

Smith Trial Group represents LGBTQ+ employees throughout Southern California in discrimination, harassment and retaliation cases. Our employment results include a $500,000 settlement in a wrongful termination and discrimination case. Consultations are free and confidential.

What the Law Protects

California’s Fair Employment and Housing Act prohibits employers with five or more employees from discriminating based on sexual orientation, gender, gender identity and gender expression. Since 2020, federal law has also protected gay and transgender employees, after the U.S. Supreme Court held that Title VII’s ban on sex discrimination covers sexual orientation and gender identity.

These protections apply to hiring, firing, pay, promotions, assignments, benefits and every other term and condition of employment.

Examples of Unlawful Treatment

• Firing, demoting or refusing to hire someone because they are gay, lesbian, bisexual, transgender or nonbinary
• Treating an employee differently after they come out or begin a gender transition
• Slurs, jokes or comments about sexual orientation or gender identity that create a hostile work environment
• Repeatedly and intentionally using the wrong name or pronouns after being asked to use the correct ones
• Denying access to a restroom or locker room that matches the employee’s gender identity
• Enforcing dress codes in a way that prevents an employee from dressing consistently with their gender identity or expression
• Asking about an employee’s sexual orientation, gender identity or medical history related to transition

Rights of Transgender and Nonbinary Employees

California regulations give transgender and nonbinary employees specific protections. Employers must allow employees to use facilities that correspond to their gender identity, must permit them to dress consistently with their gender identity or expression, and generally must use the name and pronouns the employee requests. An employer may not require proof of medical treatment or a legal name change to respect an employee’s gender identity.

Retaliation

It is illegal to retaliate against an employee for reporting discrimination or harassment, supporting a co-worker’s complaint, or participating in an investigation. See retaliation.

What to Do

• Keep a record of discriminatory comments and incidents, with dates and witnesses.
• Save emails, texts and messages, and keep copies of performance reviews.
• Report the conduct through your employer’s process if it is safe to do so.
• Watch the deadline: most FEHA claims must be filed with the Civil Rights Department within three years. See our deadline guide.

Related: workplace discrimination, sexual harassment, sex discrimination and equal pay and wrongful termination.

Helpful resources: California Civil Rights Department · EEOC: Sexual Orientation and Gender Identity Discrimination

Frequently Asked Questions

Is it illegal to fire someone for being gay in California?

Yes. California law and federal law both prohibit firing an employee because of sexual orientation.

Does my employer have to use my correct pronouns?

California regulations generally require employers to use the name and pronouns an employee requests. Repeated, intentional misgendering after a request can be harassment.

Can my employer make me use a restroom that does not match my gender identity?

No. California employers must allow employees to use restrooms and similar facilities that correspond to their gender identity.

Do I have to tell my employer I am transgender?

No. Employers generally may not ask about your gender identity or transition-related medical history, and you are not required to disclose it.

Related guides: How to report sexual harassment · How long do I have to sue my employer?