New Guidance on California Employers’ Obligations to Transgender Employees

Suggestions for compliance include:

• Dress code – an employee has a right to appear or dress consistently with his or her gender identity or gender expression. Employers should therefore have a consistent, non-discriminatory dress code policy. For example, a transgender person who identifies as female must be allowed to dress in the same manner as non-transgender women.
• Restrooms/Locker rooms – all employees have the right to use gender-specific facilities that correspond with their gender identity, regardless of the employee’s assigned sex at birth. Employers can utilize single-user or unisex facilities for all employees’ use as a matter of personal choice—employers cannot force transgender employees to use a single-user or unisex facility in an effort to prevent them from using other facilities.
• Privacy – Refrain from asking questions directly, or designed to indirectly inquire into, a person’s sexual orientation or gender identity, such as questions about the individual’s body, marital status or medical procedures.
• Who the Guidance applies to – the Guidance notes that a transgender person does not need to have completed any particular type of transition to be protected by anti-discrimination laws. In other words, employers cannot condition their treatment or accommodation of a transitioning employee on any particular stage in the transition process.  For example, conditions such as “you may use the male locker room upon completion of sex reassignment surgery” should be avoided.

This guidance was published in response to settlement of a claim brought by a transgender individual against an employer who conditioned an offer of employment upon the applicant’s use of a particular restroom prior to surgery.  Though based on California regulations, the guidance also aligns with the U.S. Equal Employment Opportunity Commission’s interpretation of Title VII of the Civil Rights Act of 1964 and the “Guide to Restroom Access for Transgender Workers” published by OSHA in June of 2015.  Employers should therefore take proactive steps to educate employees and train supervisory staff on these issues to better prevent unlawful discrimination.