California: Adds New Workplace Protections for Transgender Individuals

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All Employers with CA Employees

EFFECTIVE

July 1, 2017

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(888) 378-2456

California continues to lead the nation in offering protections for transgender individuals.  On July 1, 2017, a new set of regulations expanding existing protections under the Fair Employment and Housing Act (“FEHA”) go into effect, addressing an individual’s right to gender expression, equal access to facilities, and more.

The new regulations clarify definitions of gender expression, gender identity, sex, transgender, and further adds the definition of “transitioning.”  According to the new regulations, employers cannot use an individual’s status as a transgender or gender non-conforming individual as a bona fide occupational qualification when attempting to defend a sex discrimination claim, among other things.

Key changes to the regulations include the following:

  • Employers must allow an employee to perform jobs or duties corresponding to the employee’s gender identity or gender expression, regardless of the individual’s assigned sex at birth.
  • Employers cannot condition the availability of benefits based upon an employee’s sex, now inclusive of gender identity and gender expression.
  • Employees must be given equal access to facilities (e.g., restrooms or locker rooms) without regard to the assigned sex of the employee.
    • To accommodate privacy interests of all employees, employers shall provide “feasible alternatives,” such as locking toilet stalls, staggered schedules for showering, shower curtains, or other privacy methods.
    • Employers are still prohibited from requiring an employee to use any particular facility.
  • Employers may not request documentation or require employees to undergo evaluation in order to use facilities designated for a specific gender.
    • However, employers may make a “reasonable and confidential inquiry” to an employee regarding their gender or gender identity in order to ensure access to adequate facilities.
  • Employers cannot impose physical appearance, grooming or dress standards that are inconsistent with an individual’s gender identity or gender expression, unless the employer can establish business necessity.
  • Inquiries that directly or indirectly identify an individual on the basis of sex, gender, gender identity, or gender expression are unlawful (e.g., requiring an applicant to identify as male or female on a job application), and discriminating against an employee or applicant based on their failure to identify as male or female is prohibited.
    • Employees may voluntarily identify their gender and preferred name or pronouns, including gender-neutral pronouns.
    • Employers are required to use the employee’s preferred name and pronouns, except where the employee’s gender or legal name is required to meet a legally-mandated obligation. In that case, employers may use the employee’s gender or legal name as recorded on a government-issued identification document.
  • Employers may not inquire into, or require documentation regarding, an individual’s sex, gender, gender identity, or gender expression as a condition of employment. Likewise, employers cannot deny employment on the basis of these categories.
  • Employers may not discriminate against an individual who is transitioning, has transitioned, or is perceived to be transitioning.

In addition to these highlights, the regulations contain less substantive changes throughout the regulations to refer to individuals with gender-neutral language.

 Action Items

  1. Review the text of the new regulations here.
  2. Review and revise handbooks and other policy documents to include expanded employer obligations to prevent sex-based discrimination, including based on transitioning status.  ManagEase will automatically update relevant policies for current Blue Rock Subscribers.
  3. Review personnel files or employee management systems to ensure that employees are referred to by their preferred name and pronoun, if applicable.
  4. Remove questions that solicit gender information from employment applications.
  5. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2017 ManagEase, Incorporated.

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