November 17, 2017

California Expands Protections for Transgender Persons in the Workplace

While U.S. Attorney General Jeff Sessions recently issued a memo stating that the Department of Justice will no longer interpret Title VII of the Civil Rights Act as protecting transgender workers from discrimination, California has continued to expand protections for transgender applicants and employees. A summary of the new laws and requirements for California employers is set forth below.

Restroom Designation Laws

Effective March 1, 2017, employers with a single-use bathroom in their control are required to identify that bathroom as all-gender, unisex or just a restroom (without reference to gender). This must be done whether or not the employer has transgender employees. 

Expanded Protections Under FEHA

On July 1, 2017, new regulations expanding on the existing protections for transgender persons in the work place took effect and include the following:

Gender Inquiries. Employers are prohibited from making inquiries that, directly or indirectly, seek to identify an individual’s sex, gender identity or gender expression. There are a few limited instances where such inquiries are permissible: (1) a bona fide qualification that requires an employee to be a particular gender for a job, (2) voluntary self-identification for affirmative action reporting or recordkeeping requirements, provided that employers do not discriminate against those who choose to not self-identify; and (3) when an employee initiates the discussion to discuss working conditions involving the employee’s sex, gender identity and gender expression. Employers should remove any portions of job applications that asking an applicant to state their gender, unless being of a specific gender is a bona fide job qualification.

Noun and Pronoun Preference. Under the new regulations, employers must honor an employee’s request to be identified by a preferred gender, name or pronoun, including gender-neutral pronouns. Employers can only insist on using an employee’s legal name or gender if required to meet a legally mandated obligation. As a general matter, upon receiving a request, employers should make any requested changes that are under its control (e.g., email address, business cards, office placards), and explain the changes that the employer is not able to make (payroll, IRS forms, other documents to government agencies).

Transitioning. The new regulations expand the existing definitions of gender expression, gender identity and transgender to include “transitioning” employees. They also include a definition for “transitioning” and specifically state that it is unlawful to discriminate against an individual who is transitioning, has transitioned, or is perceived to be transitioning. The transitioning process may involve a number of steps, such as changes in name and pronoun usage, facility usage, participation in employer-sponsored activities and undergoing hormone therapy, surgeries or other medical procedures. Generally speaking, getting external counsel involved to help navigate the transition process respectfully is a prudent approach.

Access to Facilities.  The new regulations require employers to provide comparable, safe and adequate facilities (which are intended to include restrooms, showers and lockers) without regard to the sex of the employee. Employees must be permitted to use facilities that correspond to the employee’s stated gender identity and employers cannot require any proof of medical treatment, surgical procedure or other legal change of identity documents for an employee to use a particular facility. To protect the privacy interests of all employees, the regulations require employers to provide feasible alternatives, such as, locking toilet stalls, staggered schedules for showering, or shower curtains. Employers with multi-user facilities can make a reasonable and confidential inquiry of an employee for the sole purpose of ensuring access to comparable, safe and adequate multi-user facilities. Employers with single-occupancy facilities under their control must use gender-neutral signage.

Dress Codes.  California employers cannot impose a physical appearance or dress code that is inconsistent with an employee’s gender identity or expression in the absence of a legitimate business necessity. Employers should review their policies to ensure that employer policies are compliant with the new regulations.

Training and Notice Requirements

The Transgender Work Opportunity Act made California the first state to require education and training in the workplace about gender identity, gender expression and sexual orientation.  Presently, employers with 50 or more employees must provide two hours of sexual harassment training for California-based supervisors every two years. The new law expands the subjects that the mandatory supervisor training must include. Beginning on January 1, 2018, the two-hour harassment training must include components on harassment based on gender identity, gender expression and sexual orientation.

Every employer in California must post the Transgender Rights in the Workplace poster developed by the Department of Fair Employment and Housing (DFEH) in a prominent and accessible location. A copy of the required poster is available on the DFEH website.