New California Regulations on Transgender Identity and Expression Take Effect

Under California’s Fair Employment and Housing Act (FEHA), employers may not discriminate on the basis of the gender identity or gender expression of an employee or applicant. On July 1, 2017, newly amended California FEHA regulations on transgender identity and expression (which can be found here) took effect, specifically interpreting and expanding upon protections for transgender employees in a number of ways, including the following:

Definitions: The amended regulations now provide specific definitions of the terms “gender identity,” “gender expression,” “transgender” and “transitioning” as used in the regulations.

Restroom Facilities: Employers must provide all employees, regardless of sex, with safe, comparable and adequate restroom facilities. An employee must be allowed to use the restroom facility that corresponds to the employee’s gender identity or gender expression. Employers cannot require an employee to use a particular restroom facility, such as a unisex or single-user restroom.  Employees do not have to undergo, or provide proof of, any medical treatment or procedure, or provide any identity document, to use facilities designated for use by a particular gender

Transitioning: It is unlawful to discriminate against someone who is transitioning, has transitioned or is perceived to be transitioning. An employer may assert an affirmative defense based on a “Bonafide Occupational Qualification,” subject to a number of limitations.

Dress Standard: An employer may not impose a dress standard that is inconsistent with an employee’s gender identity or expression in the absence of a strong business necessity.  Employees must be allowed to dress consistently with their gender identity/expression.

Preferred Name and Identity: Employers must honor an employee’s request to be referred to by a particular name, gender or pronoun, including gender-neutral pronouns. Employers may use the gender or legal name that appears on an employee’s government-issued identification document only if necessary to meet a legally-mandated obligation.

Documentation: Employers are now prohibited from asking questions that identify an individual on the basis of sex, gender, gender identity or gender expression. The amended regulations also prohibit employers from requiring individuals to provide proof of sex, gender, gender identity or gender expression. For employment recordkeeping purposes such as collecting data for affirmative action plans, employers may request that applicants or employees self-identify, but only on a voluntary basis.  Note that this requirement may affect not only employment application forms, but other employment-related forms which ask an employee or applicant to identify whether they are male or female.

As these regulations have now come into effect, employers should ensure that their policies and employment-related forms are currently in compliance. Employers should also review their employee handbooks, employment application forms, and other forms and procedures to assure compliance with the new regulations.

Posted in Discrimination and Harassment, Employment Law, General.