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What are employers allowed to ask regarding gender identity?

Most employers know that they are not allowed to discriminate against their employees for many different characteristics. These include their race, age, sex, national origin, disability and for many other reasons. However, recently there has new guidance on transgender discrimination against transgender employees and those with different gender identification. Many employers may also have certain biases against them or simply not understand. Therefore, many employers may discriminate against these employees.

One way in which this can occur is in the interview process. Generally employers are trying to learn about potential employees in these interviews to determine if they have the qualifications to do the job requirements. However, they are also sometimes trying to figure out if they are going to be a good fit. Through the process though, they still cannot discriminate.

So, employers' questions should be limited to inquiries about the potential employees' work histories, experience, personal references, education and other questions to determine whether they are qualified for the position. They should not ask any questions about their marital status, spouses' names, questions about their bodies or any surgeries they may have had or plan to have and any other questions relating to gender identity. These questions are discriminatory by themselves and do not have anything to do with their qualifications.

Even though this is the law in California, many employers will ask these questions and discriminate against transgender individuals in other ways as well. If this occurs, the employee may be entitled to compensation. If they are discriminated against in the interview process, this compensation could include getting the job they were applying for, back pay and potentially future pay. These are very complicated matters though and consulting with an experienced attorney may be helpful.

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