Update on 2017 Transgender Protection Regulations

Author: Trina Clayton

With the recent media frenzy surrounding President Trump’s attempt to ban transgender individuals from serving in the military, and Attorney General Jeff Sessions’ formal determination that federal civil rights law does not protect transgender workers from employment discrimination, we thought it a particularly fitting time to highlight some of the new 2017 rights and protections afforded to transgender individuals, here in California.

In May 2017, the California Department of Fair Employment and Housing (DFEH) approved new regulations regarding transgender identity and expression in the workplace.  A new definition for “transitioning” was added and the regulations now prohibit discrimination against an individual who is transitioning, has transitioned, or is perceived to be gender transitioning. The regulations became effective July 1, 2017.

Restroom Facilities

Under the new regulations, employers must provide equal access to comparable, safe and adequate facilities without regard to the sex of the employee.

All employees have the right to use a facility that corresponds to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth.  An employer may not REQUIRE an employee to use particular facility and they are not allowed to ask for “proof” from an employee to allow them to use a particular facility.

This regulation applies to more than just bathrooms.  It also applies to other facilities including locker rooms and showering areas.   In order to protect the rights of ALL employees, employers shall provide feasible options to maintain privacy – such options might include locking toilet stalls, staggered shower schedules, and shower curtains.

Dress Standard

The 2017 regulations make it 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 a business necessity.  Please note, “business necessity” is a difficult hurdle to overcome and “customer preference” is not considered as such.  If an employer does have a dress standard, it must be enforced in a non-discriminatory manner.

Preferred Name and Identity

The new regulations require employers to honor an employee’s request to be identified by a preferred 1) gender and 2) name or pronoun – including gender-neutral pronouns.  An employer can be held liable for a FEHA violation if the employer fails to abide by an employee’s stated preference. Employers can only insist on using an employee’s legal name or gender if it is otherwise required to meet a legally-mandated obligation.

Documentation

An employer cannot inquire or require documentation on sex, gender, gender identity, or gender expression as a condition of employment.

Employers should ensure their policies comply with these new regulations regarding transgender identity and expression.  Employers should also review their employee handbooks to make sure any policies contained therein comply with the new regulations.  For specific legal advice regarding transgender regulations or any other employment issue, please contact Ad Astra for guidance.

 

Harassment Prevention Training Expansion – Transgender Rights – SB 396

Author: Trina Clayton

With the federal government’s seemingly monthly attempts to chip away at the rights of transgender individuals – we wanted to start off 2018 with some positive news for the transgender community in California.  State law will soon expand mandatory harassment training to include training on transgender rights.

Current law requires California employers with 50 or more employees to provide supervisors with two hour of sexual harassment prevention training within six months of their assumption of a supervisory position, and every two years, as specified.  With the passage of Senate Bill 396, this training will now be required to include training on harassment based on gender identity, gender expression and sexual orientation.  SB 396 also requires employers to display a poster regarding transgender rights in a prominent and accessible location in the workplace – the Department of Fair Employment and Housing will develop this poster.

Other 2018 law relating to transgender rights will be discussed in greater detail in a subsequent blog.  Analysis of 2017 laws expanding the rights for transgender individuals can be found here. For specific legal advice regarding transgender regulations or any other employment issue, please contact Ad Astra for guidance.

California Fair Pay Act Expansion – AB 46

Author: Trina Clayton

As an important reminder, in 2016, California enacted the Fair Pay Act, which revised and expanded previous state law relating to gender pay inequality – the Fair Pay Act was expanded in 2017 to address racial/ethnic wage disparity.

The current law prohibits a private employer from paying any of its employees wage rates that are less than the rates paid to employees of another gender, race or ethnicity, for substantially similar work.  If such a wage differential exists, an employer must be able to show that specific and reasonably applied factors account for the entire differential. These factors include:

  • Seniority systems
  • Merit systems
  • Systems that measure quality or quantity of production; or,
  • A “bona fide factor” other than sex, race, or ethnicity such as education, training, or experience.

In addition, the Fair Pay Act states that prior salary cannot, by itself, justify a disparity in compensation.  Unlike FEHA, the California Fair Pay Act does not require an employee show that the employer had any discriminatory intent.

Beginning January 1st, 2018, AB 46 will expand the Fair Pay Act to also cover public employers.  Public employers will not, however, be subject to the Labor Code provision applicable to private employers that makes willful violation of the Fair Pay Act a misdemeanor.   For specific legal advice regarding the California Fair Pay Act or any other employment issue, please contact Ad Astra for guidance.

Salary Inquiry Ban – AB 168

Author: Trina Clayton

Women – Have you ever felt that you were being paid less money than the men sitting right next to you, doing pretty much the same work?   Were there times where you actually knew this to be the case?  You are not alone!

Several studies reflect the unfortunate reality that women have historically been paid less than their male counterparts for performing substantially similar work.  AB 168 was enacted to try and fix this persistent gender pay disparity.  The rationale for AB 168 being that pay inequities are perpetuated when current pay is based on past employer decisions that could have been discriminatory.

Everyone is familiar with the situation – you are applying for a new job.  Maybe you are applying online, maybe you are talking to a recruiter or the director of Human Resources.  Inevitably, the question is asked – “How much were you making at your last job?”  The reason for asking this question might be benign, but, unfortunately, it has been shown to have a notable discriminatory effect.  If a female applicant had been discriminated against at her prior place of employment (by receiving less pay than her male counterparts), the new employer might feel justified in offering her a lower salary at the new job since, “that is what she was making before.”

AB 168 makes it unlawful for California employers, including state and local governments, to ask applicants about their prior salary, compensation, and benefits.  Additionally, the employer cannot, either directly or indirectly (for instance, by asking a former employer), seek this type of information about the applicant.  The employer may consider prior salary information the applicant voluntarily and without prompting discloses, in setting pay.   However, as noted in our earlier blog post, prior salary cannot, by itself, justify gender compensation disparity.  For specific legal advice regarding gender equality regulations or any other employment issue, please contact Ad Astra for guidance.

What To Do When The ICE-Man Cometh

Author: Trina Clayton

Less than a month after federal immigration officials raided nearly 100 7-Eleven stores nationwide, U.S. Immigration and Customs Enforcement (ICE) agents conducted another sweep at the end of January – searching 77 businesses in the San Francisco and Sacramento areas in what was believed to be the largest localized raid since President Donald Trump took office.  What’s more, it doesn’t look like this will be the end of the ICE raids.  ICE acting director Thomas Homan has made a call for a “400 percent increase” in agency operations focusing on workplaces and, specifically, workplaces in California.  In light of this governmental shift, what, exactly, is an employer supposed to do when ICE comes to call?

Fortunately, California employers have been provided slightly firmer ground on which to stand, based, in large part, by a recent law which went into effect January 1, 2018 – the Immigrant Worker Protection Act (AB 450).

AB 450’s provisions include the following:

Read More >

Do I have to Pay a Job Applicant for “Try Out” Time?

Author: Trina M. Clayton

When hiring a new employee, many employers find it valuable to observe a candidate perform essential job skills, to help them select the right applicant.  An employer may ask a candidate to demonstrate how they would actually perform the job – for instance – having a delivery driver lift heavy boxes, having a cook demonstrate food preparation skills, or having an office worker perform a typing test.  Employers should be mindful, however, that depending on what the applicant is asked to do during an interview, and how much time it takes, they may need to pay the applicant for this “try-out” time.

Primary Considerations

According to the California Division of Labor Standards Enforcement (DLSE), there are three principal factors to consider when determining whether “try-out” time needs to be paid.Read More >

Familial Status Discrimination – Part III: Potential Liability for Landlords

Author: Trina M. Clayton

There has been a marked increase in familial status suits over the past several years, with many more that settle under confidential agreements for monetary damages, making the potential for these claims quite serious.  A landlord found to be in violation of familial status housing laws could incur any number of penalties including:

  • Civil penalties of up to $16,000 for a first violation and $65,000 for future violations;
  • Actual damages to reimburse a tenant or prospective tenant for costs incurred because of the alleged discrimination such as paying for the tenant’s out-of-pocket expenses for finding alternative housing or rent fees associated with alternative housing;
  • Damages to compensate a tenant or prospective tenant who has suffered humiliation, mental anguish or other psychological injuries as a result of the alleged discrimination;
  • Punitive Damages; and
  • Attorney fees

A landlord may also be ordered by the court to take specific action to reverse the alleged discrimination (such as renting to a family which the landlord had initially rejected), and participate in fair housing training.

It is imperative a landlord abide by federal, state and local laws regarding Fair Housing.  For specific legal advice on familial status or other types of housing discrimination, please contact Ad Astra for guidance.