In 2019, especially in California, society has gravitated to a more forward-thinking attitude towards the way sex and gender is understood.  Ideas of what is considered “normal” or the very concept of normal are increasingly becoming a tired way of contemplating a person’s identity.  However, with this in mind, there are some areas in society that are not so progressive and take a threatened approach to these new ideas.  In particular, the workplace remains a space that challenges these revolutionary perceptions of embracing developing roles in gender and sex.  Sex and gender discrimination continues to run rampant in workplaces all over the United States by employers who idolize dated ideals based on personal reservations.  Employees may also be at fault for imposing their personal beliefs on fellow colleagues, but it is up to the employer to take steps to enforce a zero-tolerance policy for sex and/or gender discrimination. 

Understanding the basics

Sex concerns how males and females are differentiated by their biological makeup such as the distinction between their genitalia and hormones.  Gender is a bit more complicated.  Gender is more of a concept that reflects society’s view of how a person should look and act based on their sex.  For instance, girls should play with dolls and boys should play with toy cars or the idea that women are meant to cook and men are not supposed to cry. The definition of gender is essentially based on social constructs.

Taking into account the differences between sex and gender, a person who considers themselves as transgendered, may not identify with the sex they were given when they were born. Broadly speaking, a person who identifies as transgendered may feel more connected with the opposite sex than the one they were born as. For example, a person born as a male may feel more connected to being female and will, therefore, choose to express themselves physically and emotionally as a female.

1. Discrimination

In California, there are laws created with the purpose of protecting employees from being discriminated against in the workplace because of their sex and or gender.  This means it is unlawful for an employer to single out an employee and treat them negatively because of their gender and or sex. For instance, it may be a violation of particular employment laws for an employer to fire an employee based on being transgendered.  In that situation, that may be considered gender discrimination.  Because there are different types of sexual harassment, an employer who picked on an employee based on their sex, such as a woman being singled out at a predominantly male company may be categorized as sex discrimination.  There may also be situations where an employee experiences both sex and gender discrimination.  In any case, employees have the right to work in a discrimination-free and safe workplace.  If an employee feels they are being singled out or treated poorly because of their sex and or gender, the employee needs to make a formal complaint.  Should an employee be wary of reprisals, they should seek advice from a legal professional such as an employment lawyer.

2. An example of sex discrimination in the workplace

Sex and gender discrimination can be exercised in various ways, all of which can cause feelings of isolation and intimidation.  In some cases, an employee can feel unwelcome or even unsafe in their own place of work.

For example, Joey, a hotel guest services representative, had been employed by the chain for three years.  Joey identified herself as a male but a transgendered female. Throughout Joey’s time as an employee at the hotel, her efforts had been noted in her performance reviews as “demonstrating passion and dedication in delivering quality service to customers”. In the last year, Joey garnered two Employee of the Month awards. Easing into her fourth year at the company, Joey was encouraged by her superiors to apply for a position that had recently opened up in management.  However, Joey’s enthusiasm towards applying for the position took a dive when she recently put a request in for a week off to have gender reassignment surgery, as Joey planned with her doctor to transition from male to female. Once Joey put in this request, she began feeling excluded at work.  She stopped receiving e-invites to staff meetings and her weekly shifts were reduced.  It became evident that Joey’s manager Dave had an issue with her choice to transition when Dave removed Joey from her reception duties to working in the back office.  When Joey asked why she was removed from her regular position, Dave explained that his demeanor and appearance after his surgery might be “off-putting” to their particular clientele. Joey was eventually passed over for the promotion into the management position and was never permitted to return to her position at reception. 

Here, Joey might consider contacting a sexual harassment lawyer to discuss the facts of the events leading up to her demotion.  An employment lawyer may look at the facts such as Joey being removed from her original position coupled with the comments made towards her by the manager and noting her being excluded from staff meetings, all may indicate discrimination. 

3. Facilitating respect in the facilities

There are particular regulations that may oblige an employer to allow an employee to use the restroom in which they identify with.  This would mean that a female employee who identified themselves as a transgendered male should be permitted to use the men’s designated restroom. Keep in mind that this stands regardless of the employee’s sex at birth.

4. Dress the part…or not

According to new employment regulations in California, an employer cannot require an employee to dress or groom themselves in a way that is inconsistent with the gender or sex in which that employee identifies themselves as. For example, it may be considered a violation of the regulation for an employer to enforce a rule upon all female employees to dress a particular way as opposed to the male employees such as wearing a skirt and red lipstick. Of course, employers can, within reason, enforce a dress code for their staff as long as it is for the sole purpose of employment discrimination.  This means an employer can enforce particular dress code standards as long as they do not infringe upon the gender in which an employee considers themselves to be.