Gender Identity / Expression Discrimination, Harassment and Retaliation

The legal team at Mehtani Law Offices regularly represents employees in cases involving gender identity / expression discrimination, harassment and retaliation based on gender identity / expression.

GENDER DISCRIMINATION

To bring a gender identity / expression discrimination claim under California law, an employee must basically show that (i) the employee suffered an “adverse employment action” by his or her employer; (ii) that a “substantial motivating factor” for such action was the employee’s gender identity / expression; and (iii) that the employee was harmed by the employer’s conduct.

As explained by the Judicial Council of California Jury Instructions, “’Adverse employment actions’ are not limited to ultimate actions such as termination or demotion. There is an adverse employment action if [name of defendant] has taken an action or engaged in a course or pattern of conduct that, taken as a whole, materially and adversely affected the terms, conditions, or privileges of [name of plaintiff]’s employment. An adverse employment action includes conduct that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion. However, minor or trivial actions or conduct that is not reasonably likely to do more than anger or upset an employee cannot constitute an adverse employment action.”

A “substantial motivating reason” is a reason that actually contributed to the applicable adverse employment action. While it must be more than a remote or trivial reason, it need not be the only reason motivating the applicable adverse employment action.

GENDER IDENTITY / EXPRESSION HARASSMENT

Gender identity / expression harassment claims under California law require a showing that (i) the employee suffered either “severe” or “pervasive” mistreatment by another employee or group of employees; (ii) that a “substantial motivating reason” for the mistreatment is due to the employee’s gender identity / expression; and (iii) that the employee was harmed by the employer’s conduct.

Importantly, there has to be a “nexus” or connection between the mistreatment and the employee’s gender identity / expression. In other words, it is not enough to merely show that you expressed or identified with a particular gender and were mistreated; instead, you need to show that a “substantial motivating reason” for the mistreatment was such gender identity / expression .

Mehtani Law Offices attorneys regularly litigate gender identity / expression harassment cases. What we typically look for is direct or circumstantial evidence of gender identity / expression harassment. For example, inappropriate or mean comments about an employee’s gender identity / expression by a supervisor repeatedly on a daily basis over a period of time could be deemed harassment, depending on all of the facts and circumstances.

Harassment claims can often be highly particularized and you should consult with an attorney to determine whether you indeed have a harassment claim. Sometimes the conduct may be inappropriate or unprofessional but does not rise to the level of legal harassment. Other times the situation is quite clear, and other times it is gray. The attorneys at our Firm can review the specific facts of your situation and analyze whether they believe you have a harassment case.

GENDER RETALIATION

To bring a case for gender retaliation under California law, an employee must basically show that (i) the employee suffered an “adverse employment action” by his or her employer; (ii) that a “substantial motivating reason” for such adverse employment action was because the employee engaged in protected activity by protesting or refusing to participate in gender identity / expression discrimination or other illegal conduct related to employees’ gender identity / expression; and (iii) that the employee was harmed by the employer’s conduct.

Importantly, people often claim that they are being retaliated against but cannot evidence an actual “adverse employment action”. But without an adverse employment action, the employee cannot prove a case of retaliation.

You should contact Mehtani Law Offices at (213) 291-6900 or toll-free at (844) 501-6690 or send us a message if you feel you have suffered discrimination, harassment or retaliation based on gender identity / expression.