September 18, 2017

New California Regulation Protects Transgender Employees

The California Fair Employment and Housing Council (“FEHC”) recently adopted amendments to the existing regulation on sex discrimination which address transgender identity and expression.  Some changes are subtle, including a shift in language from “gender at birth” to “gender assigned at birth,” and the replacement of “opposite sex” with “different sex.”  The definition of  “gender identity” has been expanded and a definition for “transitioning” added.  These changes provide several new bases of liability for employers, and require review and modification of employment policies and procedures.  

Applications.  An employer may not require that applicants identify themselves on the basis of sex, but this information may be requested on a voluntary basis.  An employee’s misidentification of gender on an application is not a fraudulent misrepresentation, unless sex is a Bona Fide Occupational Qualification (BFOQ).  An employer may not discriminate based on an applicant’s failure to select a gender on an application form.

Transgender Status Alone Is Not a BFOQ.  An employee must be permitted to perform jobs or duties that correspond to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth, unless there is an applicable BFOQ.  

Toilets and Other Facilities.  Employees must be permitted to use facilities that correspond to their gender identity or gender expression.  Employers may take measures to respect the privacy interests of all employees, including locking toilet stalls, staggered schedules for showering, and shower curtains.  An employer may not require medical proof prior to allowing use of the facility of the employee’s choice, but may make a confidential and reasonable inquiry of an employee to ensure appropriate access.  All single occupancy facilities under the employer’s control must use gender neutral signage, such as Restroom, Unisex, Gender Neutral, or All Gender Restroom.  Facilities subject to these rules include locker rooms, dressing rooms, dormitories, and other similar facilities.  (This requirement is broader than section 118600 of the California Health & Safety Code, which was effective January 1, 2017.  It requires that single user toilet facilities must be labeled with gender neutral signage.)  

Dress and Grooming Standards.  Dress or grooming standards may not be enforced in a manner inconsistent with an individual’s gender identity or gender expression, absent a business necessity.

Preferred Name and Pronoun.  An employer must use the employee’s preferred gender, name, and/or pronoun, including gender neutral pronouns if the employee so requests.  Employers may be liable under the Fair Employment and Housing Act for failure to do so.  However, employers may use the gender and legal name indicated on government issued identification when necessary to meet a legally mandated obligation.  

Fringe Benefits.  Employers may not condition the availability of fringe benefits on sex, including gender identity or gender expression.

Practical Implications
Employers should take steps now to ensure that their applications, policies, procedures and facilities are legally current.  Employers are encouraged to consult with counsel to ensure compliance with all applicable laws.