Question:

I attended an anti-discrimination training session provided by my employer yesterday and was surprised to learn that gender, in addition to sex, is a protected classification. This seems like unnecessary duplication. Is there a difference between gender and sex when it comes to a discrimination claim?

Answer:

Yes, there is. Effective January 1, 2004, Section 12926 of the California Fair Employment and Housing Act (FEHA) was amended to expand the prohibition on sexual discrimination and harassment by including gender. FEHA incorporated by reference the definition of gender contained in Penal Code Section 422.76 which is part of California’s anti-hate crimes law. For purposes of the FEHA, gender includes “the employee’s or applicant’s actual sex or the employer’s perception of the employee’s or applicant’s sex and includes the employer’s perception of the employee’s or applicant’s identity, appearance, or behavior, whether or not that identity, appearance, or behavior is different from that traditionally associated with the employee’s or applicant’s sex at birth.” In addition, a new section was added to the FEHA which permits employers to require an employee to adhere to reasonable workplace appearance, grooming, and dress standards not precluded by other provisions of state or federal law, provided that an employer shall allow an employee to appear or dress consistently with the employee’s gender identity.

These changes to the FEHA clearly prohibit transgender discrimination. Noteably, they also prohibit discrimination based on sex stereotypes. The California Assembly Labor and Employment Committee opined that these FEHA amendments will “benefit any person who does not possess traits or project conduct stereotypically associated with his or her sex. These traits may include a person’s personality, clothing, hairstyle, speech, mannerisms, or demeanor. They may also include secondary sex characteristics such as vocal pitch, facial hair, or the size or shape of a person’s body. For example, this bill would protect a female employee from being told that she must dress in a more ‘feminine’ manner and a man from gender-based harassment on the job because he has a soft voice or a slight build.” According to the Senate Judiciary Committee, these amendments to the FEHA “protect men who are seen as ‘too feminine’ and women who are perceived ‘as too masculine.’”

Notably, even prior to these amendments to FEHA, the United States Supreme Court recognized gender stereotyping as a form of sex discrimination. This occurred in the Price Waterhouse v. Hopkins case in which the United States Supreme Court held that a woman who is denied partnership in a firm because she behaved in a way the firm’s partners deemed too aggressive could prevail on a claim of sex discrimination based on gender stereotyping. Similarly, in 2000, the Ninth Circuit Court of Appeals held that federal sex discrimination laws prohibited discrimination against transgender people. In 2001, the Ninth Circuit Court of Appeals recognized that a man might be discriminated against on the job because he is perceived to have feminine characteristics.

The FEHA and case law make it clear that employment discrimination based on gender is unlawful.

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