On July 1, 2017, the California Department of Fair Employment and Housing’s (DFEH) regulations concerning transgender employees went into effect. The new regulations interpret the California Fair Employment and Housing Act’s (FEHA’s) provisions prohibiting discrimination on the basis of “gender identity” and “gender expression.”
The new regulations provide new definitions for the following terms:
- “Gender expression” means a person’s gender-related appearance or behavior, or the perception of such appearance or behavior, whether or not stereotypically associated with the person’s sex assigned at birth.
- “Gender identity” means each person’s internal understanding of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.
- “Transitioning” is 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. This process may include, but is not limited to, changes in name and pronoun usage, facility usage, participation in employer-sponsored activities (e.g. sports teams, team-building projects, or volunteering), or undergoing hormone therapy, surgeries, or other medical procedures.
The new regulation clarify that employers are required to provide “equal access to comparable, safe, and adequate facilities” to all employees without regard to the sex (which is defined to include gender identity and gender expression) of the employee. Employers are also expressly required to “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.”
The regulations also remind employers that if they have “single-occupancy facilities” under their control, they are required to use gender-neutral signage for those facilities, such as “Restroom,” “Unisex,” “Gender Neutral,” “All Gender Restroom,” etc.
Finally, the regulations clarify that employers are not permitted to require employees provide proof of any medical treatment or procedure or to provide any identity document to use facilities designated for use by a particular gender.
While employers are still permitted to impose a dress code, the new regulations clarify that it is unlawful for an employer to impose upon an applicant or employee any “dress code” (i.e. physical appearance, grooming or dress standard) which is inconsistent with an individual’s gender identity or gender expression. In addition, the dress code must serve a legitimate business purpose and cannot discriminate based on an individual’s sex, including gender, gender identity, or gender expression.
The only exception to this prohibition is if the employer can establish business necessity for the particular dress code restriction.
Preferred Name and Identity
The new regulations add a new requirement that employers comply with an employee’s request to be identified by a certain name or gender identity. The only exception to this requirement is if the employer is under some other legal obligation to identify the employee by his or her legal name or gender marker.
Employers are also prohibited from inquiring into an employee or applicant’s sex, gender, gender identity or gender expression. The only exception is if the employer can establish a business necessity for such an inquiry.
Recommendations for Employers
It is recommended that all California employers review the new regulations and verify their employment practices comply with the new regulations. Specifically, employers should consider the following:
- Revising existing anti-discrimination policies to include express protections relating to sexual orientation, gender identity and gender expression;
- For employers with single-user restrooms, verify that the restroom is labelled with the appropriate signage (i.e. the unisex signage);
- Verify that any dress code policy avoids gender stereotypes and is enforced consistently; and
- Most importantly, provide training to your managers and supervisors about the new regulations.