HR Alert

California Releases Regulations Concerning Transgender Identity and Expression

New Regulations Effective July 1, 2017

The California Fair Employment and Housing Council has released final regulations, effective July 1, 2017, regarding transgender identity and expression under the state Fair Employment and Housing Act. A summary of the regulations is presented below.

Additional Rights

It is unlawful to deny employment to an individual based wholly or in part on the individual's sex, gender, gender identity, or gender identity. It is also unlawful to discriminate against an individual who is gender identity, has transitioned, or is perceived to be transitioning.

Under the regulations, it is also unlawful for employers (and other covered entities) to inquire about or require documentation or proof of an individual's sex, gender, gender identity, or gender expression as a condition of employment. However, an employer may assert a Bona Fide Occupational Qualification defense (see Sect. 11031).

Note: The regulations do not prevent 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. (Also, the regulations do not preclude an employer from making a reasonable and confidential inquiry of an employee for the sole purpose of ensuring access to comparable, safe, and adequate multi-user facilities.)

Terms, Conditions, and Privileges of Employment

It is unlawful to impose upon an applicant or employee any physical appearance, grooming, or dress standard which is inconsistent with an individual's gender identity or gender expression, unless the employer can establish business necessity.

Under the final regulations, it is also unlawful for an employer to condition the availability of fringe benefits upon an employee's sex, including gender identity and gender expression. Additionally, where rest periods are provided, equal rest periods must be provided to employees without regard to the sex of the employee.

Facilities and Employer Signage Requirements

Equal access to comparable, safe, and adequate facilities must be provided to employees without regard to the sex of the employee. This requirement may not be used to justify any discriminatory employment decision.

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. Employers (and other covered entities) with single-occupancy facilities under their control must use gender-neutral signage for those facilities (e.g., "Restroom," "Unisex," "Gender Neutral," or "All Gender Restroom"). An employer (or other covered entity) may not require an employee to use a particular facility. Employees may not be required 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.

Recording of Gender and Name

As provided in state regulations, inquiries that directly or indirectly identify an individual on the basis of sex, including gender, gender identity, or gender expression, are unlawful unless the employer establishes a permissible defense. For recordkeeping purposes (in accordance with section 11013(b) of state regulations), an employer may request an applicant to provide this information solely on a voluntary basis.

An applicant's designation on an application form of a gender that is inconsistent with the applicant's assigned sex at birth or presumed gender may be considered fraudulent or a misrepresentation for the purpose of an adverse employment action based on the applicant's designation only if the employer establishes a permissible defense. An employer may not discriminate against an applicant based on the applicant's failure to designate male or female on an application form.

If an employee requests to be identified with a preferred gender, name, and/or pronoun (including gender-neutral pronouns), an employer or other covered entity who fails to abide by the employee's stated preference may be liable under the law. 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, but otherwise must identify the employee in accordance with the employee's gender identity and preferred name.

Background

The state Fair Employment and Housing Act prohibits harassment and discrimination in employment because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person. The provisions of the law concerning discrimination generally apply to employers with 5 or more employees. Provisions concerning harassment generally apply to employers with one or more employees.

California employers are advised to read the regulations in their entirety and consult with a knowledgeable employment law attorney for individualized guidance regarding any impact on specific workplace policies and practices.


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