California employers receive long-awaited guidance
By Adriana Cara
California has traditionally been one of the most progressive states in the nation when it comes to protecting employees’ rights in the workplace. True to form, the state legislature led the charge to expand employees’ legal protections when it elected to revise the Fair Employment and Housing Act (“the FEHA”) to add “gender” to the definition of “sex” in 2003. Note that the FEHA borrowed the definition of that term from the California Penal Code, which defines gender as “the victim’s actual sex or the defendant’s perception of the victim’s sex, which includes the defendant’s perception of the victim’s identity, appearance, or behavior, whether or not that identify, appearance, or behavior is different than that traditionally associated with the victim’s sex at birth.” (See Cal. Penal Code § 422.76.)
In 2011, the California legislature took its next significant step to advance the rights of transgender individuals in the workplace by amending the FEHA to expressly include “gender expression” and “gender identity” as protected categories. These changes, which served to clarify existing, but often misunderstood law explained that gender expression refers to “a person’s gender-related appearance and behavior, whether or not stereotypically associated with the person’s assigned sex at birth,” and gender identity as “a person’s identification as male, female, a gender different from the person’s sex at birth, or transgender.”
Although the above workplace protections have now been in force in California for several years, the Department of Fair Employment and Housing (DFEH), the agency charged with enforcing the mandates of the FEHA, has taken the extra step of providing much-needed guidance on the rights of transgender individuals in the workplace. The DFEH issued new guidelines that are contained in a succinct, one-page publication that focuses on the definition of the term “transgender,” as well as three most frequently asked questions concerning transgender rights in the workplace. In sum, the DFEH guidelines clarify the following:
- People who identify as transgender are protected. An individual who identifies as a transgender individual is protected by the FEHA. An employer must agree to accommodate a person consistent with their gender identity, regardless of whether they’ve completed any step in the gender transition process.
- There are two kinds of gender transition. The DFEH guidelines explain that there are two types of gender transitions, namely “social transition” and “physical transition.” “Social transition involves a process of socially aligning one’s gender with the internal sense of self (e.g., changes in name and pronoun, bathroom facility usage, participation in activities like sports teams).” Physical transition, on the other hand, involves “medical treatments an individual undergoes to physically align their body with their internal sense of self (e.g., hormone therapies or surgical procedures).”
- Employers are prohibited from eliciting information from applicants and employees that could reveal the sexual orientation or gender identity of an individual. While employers are permitted to ask individuals about their employment history and personal references, they should refrain from asking questions regarding that person’s “marital status, spouse’s name, or relation to household members to one another.” Further, employers may not ask individuals about a person’s body and whether they plan to have surgery. In additional to violating the FEHA, this information is generally protected against disclosure by state and federal privacy laws.
- Dress and grooming standards. Employees have the right to dress in a manner consistent with their gender identities. While employers may still implement a dress code in the workplace, it must be implemented in a non-discriminatory manner. “This means, for instance, that a transgender woman must be allowed to dress in the same manner as non-transgender women, and that her compliance with such as dress code cannot be judged more harshly than non-transgender women.”
- Bathrooms, showers and locker rooms. Employees have the right to use a restroom, locker room or shower facility that corresponds with their gender identities, “regardless of the employee’s assigned sex at birth.” Further, if feasible, “an employer should provide an easily accessible unisex single stall bathroom for use by any employee who desires increased privacy, regardless of the underlying reason.” Such a restroom may also be used by an employee who does not wish to share a bathroom facility with a transgender person. However, an employee, whether transgender or non-transgender, should never be forced to use the unisex bathroom facility.
Although California laws protecting the rights of transgender individuals in the workplace have been around for over a decade, they continue to be misunderstood. As such, employers are advised to seek the assistance of experienced employment counsel before implementing or updating their current workplace policies.
—Adriana Cara, Esq., is a labor and employment partner in the San Diego office of Dinsmore & Shohl, LLP. She can be reached at firstname.lastname@example.org, 619-436-5182. The DFEH Guidelines are available on the DFEH’s website, visit tinyurl.com/heh7n5q.