The new regulations that expand existing protections under California’s Fair Employment and Housing Act (FEHA) for transgender individuals and others go into effect July 1, 2017. As California employers know, FEHA prohibits harassment and discrimination against individuals on the basis of many protected classes, including gender, gender identity, and gender expression. Below is a brief summary of the highlights of the new regulations.
- The regulations clearly define and distinguish between “transgender,” “gender expression,” and “gender identity.” They are not the same.
- “Transgender” refers to a person whose gender identity differs from the person’s sex assigned at birth. The person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth. Also, a transgender individual may or may not identify as “transsexual.”
- “Gender expression” refers to a person’s gender-related appearance or behavior, or the perception of such appearance or behavior, whether or not stereotypically associated with the person’s sex assigned at birth.
- “Gender identity” refers to each person’s internal understanding of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.
- The regulations explain the process of “transitioning” which does not have to, but may include hormone therapy, surgeries, or other medical procedures.
- The regulations state 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 also unlawful to discriminate against an individual who is transitioning, has transitioned, or is perceived to be transitioning.
- The regulations include prohibitions against employers seeking proof of an individual’s sex, gender, or gender identity or expression. However, for recordkeeping purposes, an employer may request an applicant to provide the information solely on a voluntary basis (e.g. when collecting data for EEO reporting purposes). Also, an employer is permitted to use an employee’s gender or legal name as indicated in a government-issued identification document only if it is necessary to meet a legally mandated obligation. Further, nothing precludes an employer and employee from communicating about the employee’s sex, gender, gender identity, or gender expression when the employee initiates communication with the employer regarding the employee’s working conditions.
- The regulations explain that employers cannot use a Bona Fide Occupational Qualification (BFOQ) defense to justify any different treatment (discrimination) against an individual merely because the individual is a transgender or gender non-conforming individual.
- The regulations provide that equal rest periods must be provided to employees without regard to sex, and that equal, safe and adequate facilities must be provided to employees without regard to sex.
- The regulations provide that employers must permit employees to use facilities that correspond to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth and without having to show proof of any medical treatment or other identity, to use a particular facility. However, employers with single-occupancy facilities [e.g. restrooms] under their control shall use gender-neutral signage for those facilities. Also, to respect the privacy of all employees, employers shall provide feasible alternatives such as locking toilet stalls, staggered schedules for showering, and shower curtains to ensure privacy.
- The regulations prohibit an employer from imposing any physical appearance, grooming or dress standard which is inconsistent with an individual’s gender identity or gender expression, unless the employer can establish a business necessity under the regulations.
- The regulations provide that if an employee requests to be identified with a preferred gender, name, and/or pronoun, including gender-neutral pronouns, an employer who fails to abide by the employee’s stated preference may be liable under FEHA, except in the case where an employer is permitted to use an employee’s gender or legal name when necessary to meet a legally-mandated obligation.
What Should Employers Do? The overarching message in the workplace should be that a person’s sexual identity and sexual expression should be respected and that everyone should comply with company policies and applicable law. Employers should review and update their policies if necessary to comply with the new regulations. They should also train their managers and supervisors on the new regulations to ensure that they are aware of them and act accordingly. Regardless of their political or moral viewpoint on the issue, the regulations are law and an employer (through its managing agents) must comply. Remember that the attorneys in Weintraub Tobin’s Labor & Employment Department are always available to assist in both policy review and supervisor and management training.
For a copy of the text of the regulations go to: https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/FinalTextRegTransgenderIdExpression.pdf