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.
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.
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.
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.