Category: Transgender Discrimination

DFEH Approves New Transgender Protections and Guidelines

The California Department of Fair Employment and Housing has approved new guidelines and protections for transgender people in the workplace to be effective July 1, 2017. The new amendments aim to clarify existing law and further the protection of transgender people from discrimination at work. The new legislature provides transgender rights including equal access to bathrooms and other facilities, freedom to dress differently than what is typically associated with one’s gender, and the ability to withhold information regarding one’s name and gender to the employer. Below is a detailed list of the expanded areas.

  • Definitions:
    • The new amendments elaborate on the definition of key words including gender expression, gender identity, sex, sex stereotype, and transgender.
    • The document also adds onto the list of terms with the word “transitioning”, which it defines as “a process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth. This process may include, but is not limited to, changes in name and pronoun usage, facility usage, participation in employer-sponsored activities (e.g. sports teams, team-building projects, or volunteering), or undergoing hormone therapy, surgeries, or other medical procedures.”
  • Restrooms:
    • The regulations state that employers must provide “comparable, safe, and adequate” access to facilities, and the employees shall be permitted to use the facilities that correspond to the employee’s gender identity or expression.
    • Single-occupancy facilities must use gender neutral signs.
  • Employees will not need to provide proof of medical treatments to use a facility of a gender different than their assigned sex.
  • Employers cannot condition “fringe benefits” upon an employee’s sex or gender identity.
  • Employers may not force employees to dress according to their gender identity, unless the employer can prove that it is a necessity to the business.
  • Recording of Gender and Name: Inquiries that directly or indirectly identify an individual on the basis of sex, including gender, gender identity, or gender expression, are unlawful unless the employer establishes a permissible defense. For recordkeeping purposes, an employer may request an applicant to provide this information solely on a voluntary basis.
  • An employer is allowed to use an employee’s gender or legal name as indicated in a “government-issued identification document” if and only if it is necessary to meet a “legally mandated obligation”. Otherwise, the employer must use the employee’s gender identity and preferred name.
  • Additional Rights:
    • It is unlawful to deny employment to an individual based wholly or in part on the individual’s sex, gender, gender identity, or gender expression.
    • It is unlawful to discriminate against an individual who is transitioning, has transitioned, or is perceived to be transitioning.
    • It is unlawful for employers and other covered entities to inquire about or require documentation or proof of an individual’s sex, gender, gender identity, or gender expression as a condition of employment”
      • However, an employer may assert a Bona Fide Occupation Qualification defense, which is the defense that the employer only considered qualities that he or she is legally allowed to consider when deciding to not hire or fire someone.
      • In addition, an employer may discuss with an employee their sex, gender, gender identity, or gender expression if the employee initiates communication.

Background

The Department of Fair Employment and Housing (DFEH) protects California citizens from discrimination and enforces laws regarding unfair treatment in employment, housing, and public accommodations. Regarding employment, the Fair Employment and Housing Act (FEHA) protects employees from discrimination because of race, color, ancestry, national origin, religion, creed, age (over 40), disability (mental and physical), sex, gender (including pregnancy, childbirth, breastfeeding or related medical conditions), sexual orientation, gender identity, gender expression, medical condition, genetic information, marital status, and military or veteran status.

If you have been subject to discrimination at work, please call 949-379-6250 for a free consultation. For more information on how to obtain a sex discrimination attorney, see our page on the topic.

Full Fair Employment & Housing Council Regulations Regarding Transgender Identity and Expression

California Department of Fair Employment and Housing

General Counsel deposed in sex discrimination case, transgender professor

A sex discrimination case filed by the Department of Justice is in the news again, as a judge declared a potentially key witness in the matter will have to testify. The case is United States v. Southeastern Oklahoma University on behalf of former professor Dr. Rachel Tudor. The DOJ alleges that Tudor was terminated as the result of sex discrimination, due to the fact that Dr. Tudor is transgender.

The situation begins with Tudor being hired in 2004 on tenure track as an assistant professor at the university. At this time, Tudor presented as a male. In the summer of 2007, she notified the school that in the upcoming school year, she would begin presenting herself as a female, consistent with her gender identity. During this time, she started wearing a traditionally female hairstyle and clothing and took the name Rachel. This made Dr. Tudor the first transgender professor at Southeastern.

Shortly after notifying the school of the upcoming transition, she received a phone call from an HR representative stating that the Vice President of Academic Affairs, Dr. Douglas McMillan, had inquired about firing Tudor. His reason being that her “transgender lifestyle” offended his religious beliefs. The HR representative then advised Dr. McMillan that termination for this reason would be illegal. Jane McMillan (the sister of Douglas McMillan) advised Tudor to “take safety precautions” because some people were “openly hostile” towards transgender people. She also mentioned that her brother considered transgender people to be a “grave offense to his [religious] sensibilities”. This did not discourage Tudor, however, and she continued teaching without noted performance issues.

In 2009, Tudor met with the Dean of her school Dr. Lucretia Scoufos in order to prepare for her upcoming tenure application. It was at this meeting that the Dean became aware Tudor is transgender. Despite being made aware of this fact, Tudor states that the Dean continued to refer to her using male pronouns. Also at this meeting, Tudor made it clear that she felt a faculty member in her department had been discriminating against her, and requested that this person not be a part of her tenure review board. The Dean did not relay the request to the Affirmative Action Officer, who responds to claims of discrimination.

At Southeastern University, tenure must be obtained by all professors by the end of their 7th year of employment. They are not allowed to apply until their 5th year of employment, however. If they fail to obtain tenure, their employment will be terminated. The application process includes assembling a portfolio to be reviewed by the chair of their department, other tenured faculty members, the Dean of the school, and various administrative figures before the final decision being made by the President of the university. Tudor received positive reviews and recommendations for tenure, until her portfolio reached the Dean of her school who, in spite of the praise from other faculty members, chose to not recommend Tudor for promotion and tenure. His letter of denial did not offer an explanation as to why or how he arrived at this decision. The portfolio was then passed to Vice President McMillan, who also wrote a letter not recommending Tudor for tenure without explanation. In February of 2010, Tudor requested the reason for denial from each party, in order to amend her portfolio before it was reviewed by the President of the University. Both the Vice President and Dean refused to offer her this insight, though another non-transgender male English professor had the opportunity to meet with McMillan, for guidance on strengthening their portfolio. This professor was later granted tenure.

The unwillingness to provide her with a fair opportunity for improvement led Tudor to file a grievance with the President of the college, Lawrence Minks. She also requested a hearing by the Faculty Appellate Committee, alleging that she was “denied due process” by McMillan and Scoufos refusing to provide reasoning for their negative evaluations. The FAC eventually ruled in Tudor’s favor, advising for McMillan and Scoufos to provide the missing information. However, that request was also denied by the responsible parties, rendering Tudor unable to supplement her portfolio, and ultimately leading the President to deny her application in April of 2010. His letter of denial did not give specific reasoning for the decision, but simply stated that the specifics would be discussed with her in a separate communication within 10 days. This communication never arrived, also leaving Tudor unable to file an appeal within the necessary time frame. Tudor’s application for tenure was the first in school history to be denied with positive recommendation of faculty and peers.

Eventually in June of 2010, Tudor received a letter identifying the reasons for her denial being that the areas “research/scholarship” and “university service” were supposedly deficient. However, it has been shown that her qualifications exceeded those of at least 3 other English professors granted tenure during her employment with the university. Supposedly, the Dean and VP insisted that they “couldn’t verify” a work listed in her portfolio, however, copies of that very publication sat in the University library. Covers of both clearly indicated Tudor’s role as editor.

Moving forward, Tudor notified her department chair in August 2010 that she intended to re-apply for tenure in the upcoming school year. Before she could do so, she received a letter the following October stating that she would not be allowed to re-apply that semester, saying it was “not in the best interest of the university” and that, among other reasons, he did not think her deficiencies could be corrected so quickly. He also made an odd comment stating that if administration once again disagreed with the faculty recommendations, the situation could “inflame” their relationships. This caused Tudor to once again file a grievance with the FAC who ultimately ruled in her favor once more in December, insisting she be allowed to re-apply that school year.

January of 2011, the Vice President of Business affairs responded to the FAC recommendation, He stated that the administration would not allow Tudor to re-apply because he and President Minks “interpreted” Southeastern’s policy on the matter to mean that applicants may not re-apply after the President declines them.

In May of that year, Tudor was ultimately terminated for “failing” to obtain tenure. Ironically enough, before her employment ended she received the Faculty State Recognition Award for Excellence in Scholarship for the 2010-2011 school year.

After her termination, Tudor filed a complaint with the regional EEOC office. Their investigation concluded that there was reason to believe Tudor had been discriminated against, and they referred the case to the Department of Justice.

The most recent development occurred on August 11th 2016. U.S. District Judge Robin J. Cauthron has granted the DOJ’s motion to compel the deposition of the university’s General Counsel Charles Babb. He will have to answer the federal government’s questions about communications he had with university employees about Rachel Tudor. The discussions included her gender transition and grievances she had filed.