The Department of Fair Employment and Housing (“DFEH”) recently issued new guidance for employers to prevent discrimination against transgender employees, who are protected under California’s Fair Employment & Housing Act (“FEHA”). Since 2012, FEHA protection has been extended to include gender identity and gender expression categories, and defines “gender expression” to mean a “person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” The DFEH’s new brochure, called “Transgender Rights in the Workplace” (available here), makes clear that employers must allow transgender employees access to restroom, shower, locker room and other such facilities that correspond with their gender identity. It also suggests that providing individual or unisex restrooms, where possible, can enhance privacy for all employees.

Other takeaways from the brochure:Daniel Kim 01_final

  • Questions not to ask:
    • Employers should not ask questions designed to determine the person’s sexual orientation or gender identity.
    • Employers should not ask questions about a person’s body or whether they plan to have transgender surgery.
  • Dress code and grooming standards:
    • Employees must be allowed to dress in a manner consistent with their gender identity. For example, a transgender woman must be allowed to dress in the same manner as a non-transgender woman.
  • Consider use of individual unisex restrooms
    • These can be used both transgender and non-transgender employees for employees wanting more privacy.
    • No employee should be forced to use an individual unisex restroom.

The guidance comes at a time when the issue of transgender people using the restroom consistent with their gender identity has become a controversial topic across the nation. Bills restricting access of transgender student to public restrooms are pending in state legislatures across the country, including South Dakota. Tico Almeida, president of the LGBT group Freedom to Work, hailed the new California DFEH guidance in a statement as a boon for transgender workers. “California is getting the law right while South Dakota is on the verge of harming transgender people with an enormous step backwards for basic fairness,” Almeida said. “We applaud Director Kish and the California agency for issuing important legal protections to make sure transgender employees get treated fairly at work.”

Although the guidance is based on California law, it’s consistent with the U.S. Equal Employment Opportunity Commission’s interpretation of Title VII of the Civil Rights Act of 1964. In April 2015, the EEOC in the case of Lusardi v. McHugh found prohibiting transgender people from using the bathroom in the workplace consistent with their gender identity amounts to gender discrimination under current law. The guidance also mirrors a June 2015 “Guide to Restroom Access for Transgender Workers” published by the Occupational Safety and Health Administration.

Given the evolving landscape regarding gender and gender-identity discrimination, employers should take affirmative steps to inform and train their employees regarding these new issues and prevent unlawful discrimination. Anti-discrimination/harassment training for all employees should incorporate transgender issues.