California Implements New Regulations For Transgender Employees And Applicants

New regulations adopted by the California Fair Employment and Housing Council have expanded the protections of transgender employees and applicants in California. Although state law had already protected transgender employees and applicants from discrimination, the new regulations, effective July 1, 2017, provide state-issued guidance on policies that California employers must implement regarding gender identity and gender expression. Here are some of the key changes:

Transitioning

The regulations prohibit the discrimination of any individual who is transitioning, has transitioned, or is perceived to be transitioning. The term “transitioning” is newly defined in the regulations as “a process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth,” and provides examples of what the process of transitioning may include, such as changes in name and/or pronoun use, facility preference, hormone therapy, and other medical procedures.

Gender Identity & Gender Expression

California law already protected employees and applicants from discrimination on the basis of “gender identity” and “gender expression.” The new regulations define “gender identity” as a person’s internal understanding of their gender, or the perception of a person’s identity. This definition includes, male, female, neither male nor female, a combination of both male and female, and transgender. “Gender expression” is defined as a person’s gender-related appearance or behavior, or perception of the same, whether or not stereotypically associated with the person’s sex assigned at birth.

Employee Identification Preference

Employers must honor an employee’s request to be identified by a preferred gender, name or pronoun, including gender-neutral pronouns. When an employee has made such a request, employers can only use an employee’s legal name or gender if it is necessary to meet a legally mandated obligation.

Dress Codes

In the absence of a business necessity, dress codes cannot be inconsistent with an employee’s gender identity or expression.

Restrooms

Employers must allow employees to use the restroom facility that corresponds with their gender identity or expression. Employers cannot require proof of gender for an employee to use a restroom. Where an employer has control over a single-occupant restroom, gender-neutral signage must be posted.

Gender Information

An employer cannot inquire about the sex, gender, gender identity, or gender expression of an individual as a condition of employment. When an employee initiates a discussion with the employer regarding working conditions, the employer can communicate with the employee about the employee’s sex, gender, gender identity or gender expression. An employer should not initiate such conversation or make any inquiries. While there are limited, permissible defenses to requesting the gender information of an individual involving bona fide occupational qualifications, it is best to consult an attorney before taking any such action.

In light of these regulations, employers should review their handbooks, employment applications, and company policies and practices to ensure they are in compliance. Contact your SFSS&W attorney if you have any questions about how to comply with these new, transgender regulations or any other labor and employment law matters.

Millicent N. Sanchezext. 8203msanchez@swerdlowlaw.com
Janet I. Swerdlowext. 8202jswerdlow@swerdlowlaw.com
David A. Wimmerext. 8201dwimmer@swerdlowlaw.com
Emily G. Camastraext. 8213ecamastra@swerdlowlaw.com
Meghan E. O’Kaneext. 8204mokane@swerdlowlaw.com
Lori M. Yankelevitsext. 8205lyankelevits@swerdlowlaw.com
Karen E. Rhodesext. 8206krhodes@swerdlowlaw.com

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