It is unlawful to deny employment to someone based wholly or in part on the individual’s sex, gender, gender identity or gender expression. It is also unlawful to discriminate based on the perception of someone’s sex, gender, gender identity or gender expression.

This topic contains the following information:

• General Rules
• Gender Identity and Expression Protections
• Recording and Use of Gender and Name
• Restroom and Facility Issues

General Rules

California’s prohibition against sex discrimination includes discrimination on the basis of:1

• Sex/gender.
• Pregnancy, childbirth and breastfeeding or medical conditions related to pregnancy, childbirth or breastfeeding. For more information, see Pregnancy.
• Gender identity and gender expression, including transgender status and whether an employee is transitioning or has transitioned. For more information, see “Gender Identity and Expression Protections” on this page.

Effective October 1, 2025, FEHA regulations state that California's prohibition against sex discrimination also apply where the discrimination is based on the employer's use of an automated decision system or selection criteria, including a qualification standard, employment test or proxy (a characteristic or category closely correlated with a FEHA-protected characteristic).2 In other words, the prohibitions discussed in this section still apply when employers are using automated decision systems, including artificial intelligence, in their employment practices. This may include, for example, using such tools to assess employees and job applicants, screen resumes, gather performance data and other practices.

For more information, see Automated Decision Systems and Artificial Intelligence in FEHA - California's Fair Employment and Housing Act

California protections under FEHA seek to guarantee equal employment regardless of sex/gender and to stop the ways that people are treated differently because of sex/gender, including paying people less, treating people adversely because of stereotypes, subjecting people to sexual conduct or hostile work environments and other adverse action.3

Under both federal and state laws, employers can be held liable for sex discrimination when employees face slurs based on gender stereotypes. Sex stereotypes include assumptions about a person’s appearance or behavior, gender roles, gender expression, or gender identity or ability or inability to do certain kinds of work. These assumptions may be based on myths, social expectations or generalizations.4

• Never assign job duties based on sex stereotypes.

In Nichols v. Azteca Restaurant Enterprises, Inc., the Ninth Circuit Court of Appeals ruled that harassment and slurs based on stereotypes of how men and women should act amount to sex discrimination and violate federal employment discrimination laws.5

FEHA prohibits you from compensating an employee differently because of the employee’s sex/gender. California’s Equal Pay Act also prohibits wage discrimination on the basis of gender. For more information, see Wage Equality - Equal Pay Act.

You cannot condition the availability of fringe benefits upon an employee’s sex (including gender identity and gender expression). You also cannot condition fringe benefits on whether or not the employee is the head of household, primary wage earner or other similar status. You cannot establish different retirement ages based on the sex of the employee.

Employers sometimes ask if they can have a requirement that someone be a certain gender for a job. In very limited circumstances, personal privacy considerations may justify a job requirement based on a person’s sex. These circumstances include:6

• The job requires an employee to observe other individuals in a state of nudity or to conduct body searches.
• It would be offensive to prevailing social standards to have an individual of a different sex present.
• It is detrimental to the mental or physical welfare of individuals being observed or searched to have an individual of a different sex present.

However, considerations such as customer preference, an association between sex and height or physical agility/strength, someone’s status as transgender or gender non-conforming, or traditional job roles will not justify a bona fide occupational qualification (BFOQ). For more information, see Bona Fide Occupational Qualification (BFOQ) as a Discrimination Defense.

A Ninth Circuit court case held that, under federal law, sex discrimination doesn’t include employment decisions motivated by workplace romantic relationships. The court pointed out that the Equal Employment Opportunity Commission (EEOC) has stated that federal law doesn’t prohibit preferential treatment based on romantic relationships. According to the EEOC, a “paramour preference” may be unfair, but it doesn’t discriminate on the basis of sex since any disadvantage is equally distributed among both male and female coworkers.7

Gender Identity and Expression Protections

Employers need to be aware of their obligations relating to gender identity protections in the workplace, including protections for transgender workers. Employers covered by the mandatory supervisor harassment prevention training requirement must ensure that any course they use includes a discussion of harassment based on gender identity, gender expression and sexual orientation. For more information, see “Training on Gender Identity, Gender Expression and Sexual Orientation” in Mandatory Harassment Prevention Training.

Under the Fair Employment and Housing Act (FEHA), “gender” includes both “gender identity” and “gender expression.” It is unlawful to discriminate on the basis of gender identity, gender expression or because an individual is transgender, is transitioning or has transitioned.

The following are some key definitions under the law:

• Gender identity means each person’s internal understanding of their gender identity, which may include male, female, a combination of male and female, neither male nor female, or a gender different from the person’s sex assigned at birth; it specifically includes transgender persons. The definition also includes the perception of a person’s gender identity.8
• Gender expression means “a person’s gender-related appearance or behavior ... whether or not stereotypically associated with the person’s sex assigned at birth.” The definition also includes the perception of a person’s gender related appearance or behavior.9
• Transgender is a general term that refers to a person whose gender identity is different from the person’s sex assigned at birth. A transgender person may or may not have a gender expression different from the social expectations of the sex assigned at birth. A transgender person may or may not identify as “transsexual.”10
• Transitioning is 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.11

California’s FEHA specifically provides that it is unlawful to discriminate against an individual who is transitioning, has transitioned, or is perceived to be transitioning.12

The transitioning process may include, but is not limited to:13

• Changes in name and pronoun usage (see “Recording and Use of Gender and Name” on this page);
• Facility usage (see Restroom and Facility Issues);
• Participation in employer-sponsored activities, such as sports teams, team-building projects, or volunteering;
• Undergoing hormone therapy, surgeries or other medical procedures.

According to guidance from the Civil Rights Department (CRD) a transgender person does not need to have completed any particular transition in order to be protected by the law. An employer can’t condition its treatment or accommodation of a transitioning employee on completion of a particular step in the transition.

California law prohibits you from imposing any physical appearance, grooming or dress standard that is inconsistent with an individual’s gender identity or gender expression.14 You can require adherence to reasonable workplace appearance, grooming and dress standards but they must be applied consistently and enforced in a non-discriminatory manner.15 Practically speaking, a transgender person identifying as a woman must be allowed to dress in the same manner as non-transgender women and her compliance with the policy cannot be judged more harshly than non-transgender women. For more information, see Dress Standard.

• Allow employees to dress and present themselves according to their gender identity or expression. To prevent misconceptions and stereotypes from escalating into discrimination or harassment, incorporate sensitivity to gender identity and gender expression issues into EEO and anti-harassment training programs. Examine your equal employment opportunity and anti-harassment policies to ensure that gender identity and gender expression are included as protected categories, as required by California law.
  California law also prohibits the state from entering into contracts for goods or services of $100,000 or more with a contractor that discriminates between employees on the basis of gender identity, such as being transgender, when providing benefits.

Federal Title VII bars sex and gender discrimination in employment but does not explicitly prohibit workplace discrimination based on gender identity. However, the United States Supreme Court ruled that any employment decision based, at least in part, on a person’s sexual orientation or gender identity constitutes unlawful discrimination under Title VII.16

Recording and Use of Gender and Name

California law prohibits you from making inquiries that, directly or indirectly, identify an individual on the basis of sex, gender, gender identity, or gender expression. You also cannot inquire about or require documentation or proof of an individual’s sex, gender, gender identity or gender expression as a condition of employment.17

There are very limited permissible defenses. California regulations impose tough rules regarding when there is a “bona fide occupational qualification” that would allow you to require an employee be a particular gender for a job. If you think that a position in your company requires someone of a certain gender, you should consult with an attorney. For more information, see Defense Against a Claim of Discrimination.

Keep in mind the following employer obligations under California law:

• Employers should not ask questions designed to detect a person’s sexual orientation or gender identity, such as questions about marital status or questions about a person’s body or whether the person plans to have sex reassignment surgery or other procedures.
• Employers who have affirmative action reporting or recordkeeping requirements may request applicants to self-identify, but only on a voluntary basis. You must not discriminate against an applicant because the applicant did not choose to self-identify.
• Review employment applications and other forms to remove requests to identify sex or gender. If you need the information for government reporting, seek it on a voluntary basis only.
• Be scrupulous about protecting the confidentiality of any medical information the employee may provide to you to enable you to better meet their needs.

If the employee initiates a communication with the employer to discuss working conditions, then the employer and the employee can communicate about the employee’s sex, gender, gender identity or gender expression. However, the employer should not be initiating the conversation or making any inquiries. There is one limited exception when it comes to access to multi-user restrooms and other facilities, discussed in “Restroom and Facility Issues” on this page.

California regulations require employers to honor an employee’s chosen name, gender identification or use of pronouns, including gender neutral pronouns.18

• Your company can be held liable under FEHA if you fail to abide by an employee’s stated preference to be identified by a particular gender, name or pronoun.

The federal Equal Employment Opportunity Commission has also weighed in on this issue. In the EEOC’s Lusardi v. McHugh ruling, the agency made clear that refusing to use the correct pronouns could contribute to an unlawful hostile work environment based on sex.19

There is only one exception to the requirement to use the name/gender/pronoun requested by the employee. You can use an employee’s gender or legal name as indicated in a government issued identification document, like a driver’s license or passport, but only when necessary to meet a required legal obligation and for that limited reason. Continue to identify the employee in the employee’s preferred manner for all other purposes.20

California allows residents to choose from three equally recognized gender options —female, male, or nonbinary — on state issued identification cards, birth certificates and driver’s licenses.21 The same law also makes it easier for individuals to change their gender on legal documents.

Restroom and Facility Issues

Employers may have questions on a common workplace issue involving transgender workers — which restroom or facilities to use. The basic guideline is that employees should be permitted to use the facilities that correspond with their gender identity or expression.22

• All employees have the right to use a restroom or facility that corresponds to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth.

The term “facility” is broader than simply bathrooms. It encompasses other types of employer facilities, such as an employer locker room with a showering area.

Employees may raise privacy concerns in relation to bathroom access. To protect the privacy interests of all employees, employers must provide feasible alternatives, such as:23

• Locking toilet stalls
• Staggered schedules for showering
• Shower curtains
• Other feasible methods for ensuring privacy

• You cannot require an employee to use a particular facility. For instance, you cannot tell transgender individuals that they can only use the single-stall bathroom. A unisex or single-stall bathroom can be used by any employee desiring increased privacy, regardless of the underlying reason. The use of a unisex single stall restroom should always be a matter of choice.

You cannot require an employee to undergo, or provide proof of, any medical treatment or procedure or provide any type of identity document in order to use a particular facility. In other words, if an employee wants to use the women’s room, you cannot ask that employee for a drivers’ license, birth certificate or proof that the employee is a woman.

However, if you have multi-user facilities, the FEHA regulations allow you to make a reasonable and confidential inquiry of an employee for the sole purpose of ensuring access to comparable, safe and adequate multi-user facilities.

The intent is not to allow intrusions into an employee’s privacy, but to allow for a dialogue to ensure access. For example, if an employee complained of being denied access to a restroom that corresponded with her gender expression, you could make a reasonable and confidential inquiry of the employee at that time.

Co-worker concerns around sharing facilities can typically be managed through education. Employers should keep in mind that co-worker or supervisor discomfort can never justify discriminatory terms and conditions of employment.

Recent federal and state rulings also provide useful guidance to employers.

Example: The DFEH (now CRD) sued on behalf of a transgender individual who sought employment. The company allegedly made an offer of employment on the condition that the applicant use the women’s restroom and locker room pending completion of female to male sex reassignment surgery. The applicant declined the employment offer. The superior court refused to dismiss the case, commenting that the FEHA prohibits employers from requiring transgender workers to use restrooms and locker rooms based on their sex at birth.

The case settled. As part of the settlement, the company agreed to adopt new policies to allow employees access to the facilities that correspond with their gender identity. The company also agreed to train all of its California employees.

Example: The EEOC ruled in Lusardi v. McHugh that the Army discriminated against a transgender woman when it, among other things, required her to use the single-user restroom and would not allow her to use the restroom consistent with her gender identity. The EEOC emphasized that forcing a transgender employee to use only the unisex facility could segregate the employee and perpetuate a sense that the employee is not worthy of equal treatment and respect.24

Restroom Signs

There are also specific restroom signage requirements, some found in the Health and Safety Code and some found in the FEHA regulations.

Under the Health and Safety Code, all single-user restrooms in most business establishments and public accommodations must be identified as “all-gender” toilet facilities by signage that complies with Building Code requirements found in California Code of Regulations Title 24.25

The FEHA regulations state that employers with single-occupancy facilities under their control must use gender-neutral signage for those facilities, such as “Restroom,” “Unisex,” “Gender Neutral,” “All Gender Restroom,” etc.26

Many ADA disability/access lawsuits have been filed relating to restroom signage. Different signs are required on both the wall and the door of nearly any public restroom, depending on whether the restroom is wheelchair accessible, women’s, men’s, unisex, etc. The sign on the wall (but not the door) must also include appropriate Grade II Braille features to meet accessibility requirements. The lack of appropriate pictograms could form the basis for potential claims, or potentially prevent the property from being certified as compliant with accessibility laws.

• Make certain that any symbols or language that you use on single user restrooms meet the Building Code standards. Pictograms have specific requirements. Be careful — many online retailers sell signs that might not comply with the law. Get legal advice about the appropriate sign if you have any questions.

For more information on workplace accessibility standards, see Accessibility Resources.

1. Govt. Code sec. 12926