Question: I just hired a transgender employee. What do I need to know about the new transgender regulations in California?
Answer: Effective July 1, 2017, California’s Fair Employment and Housing Act (FEHA) expanded its existing protections against discrimination on the basis of gender identity and gender expression, providing new protections for individuals who identify as transgender, including those who are transitioning, have transitioned, or are perceived to be transitioning. Some of the key provisions employers should be mindful of include the following:
Restrooms and Other Facilities
California employers must permit employees to use the facilities that correspond to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth. Employers must also use gender-neutral signage (such as “Restroom” or “Unisex”) for single-occupancy facilities under their control. Notably, California law already requires all single-user toilet facilities in any business establishment, place of public accommodation, or government agency to be identified as “all-gender” facilities as of March 1, 2017. Some exceptions exist for non-flush toilets used by employees in construction, agricultural and other limited industries.
To respect the privacy interests of all employees, the new rules state that employers shall provide feasible alternatives to employees to ensure their privacy, such as locking toilet stalls, staggered schedules for showering, or shower curtains. Employers cannot require any proof of sex or gender for an employee to use a particular facility. For example, an employer cannot tell transgender employees that they can only use the single-stall bathroom.
Identification by Preferred Gender, Name, and Pronouns
Under the revised regulations, an employer may be liable under the FEHA if it fails to abide by an employee’s request to be identified with a preferred gender, name, and/or pronoun (including gender-neutral pronouns). Employers are permitted to use an employee’s assigned sex at birth or legal name only as necessary to meet legally-mandated obligations, but otherwise must identify the employee using the employee’s preferred name and gender identity.
Employers cannot impose physical appearance, grooming, or dress standards that are inconsistent with an employee’s gender identity or gender expression in the absence of a business necessity. Note that employers have a high threshold to meet to show a “business necessity” and should consult with an attorney to evaluate the validity of any such claim relating to these rules.
An employer cannot inquire about or require documentation or proof of an employee’s sex, gender, gender identity, or gender expression as a condition of employment. Any inquiries that directly or indirectly identify an employee on the basis of sex, including gender, gender identity, or gender expression, are unlawful unless the employer establishes a permissible defense. An inquiry as to this information is permitted, however, if it is a “reasonable and confidential inquiry” by an employer solely to ensure appropriate access to multi-user facilities. An employer and an employee can communicate about this information when the employee initiates the communication with the employer about the employee’s working conditions. Employers can also request that applicants voluntarily provide this information for recordkeeping purposes, but it is unlawful to discriminate against an applicant who fails to designate “male” or “female” on an application form.
Employers should examine and update their existing policies and procedures, including dress codes, employment applications, restroom and locker room practices, and equal employment opportunity and harassment prevention policies. Managers should also receive updated discrimination and harassment training relating to gender identity and gender expression.