United States: It's Not Just The Bathrooms: Look Out For Amended FEHC Regulations Re Transgender Employees

Seyfarth Synopsis:  The California Fair Employment and Housing Council ("FEHC") is currently drafting new regulations that define employment practices that constitute discrimination against transgender applicants and employees. On April 7, 2016, the FEHC met in Oakland to discuss and hear public comment on its new, draft proposed regulations, which are in their early stages of development. The next hearing will be on June 27, in Los Angeles.

The DFEH already publishes a guidance document, "Transgender Rights in the Workplace," defining certain terms and answering employers' Frequently Asked Questions about transgender employees in the workplace. (See February 24, 2016 Client Alert, " DFEH Issues Guidelines Regarding Transgender Employees"). And the new FEHA regulations that went into effect on April 1, 2016, added protections for transgender employees and applicants. Now, in a further step toward providing direction to employers and to increase protections for transgender workers, the FEHC proposes to amend the FEHA regulations again with proposed Regulations Regarding Transgender Identity and Expression. These will affirmatively require employers to make workplaces non-discriminatory by:

  • Providing "comparable, safe, and adequate" facilities (such as restrooms and locker rooms) to employees without regard to the sex of the employees;
  • Permitting employees to use the facilities that correspond to the employee's gender identity or gender expression;
  • Using gender-neutral signage on single occupancy facilities under their control; and
  • Addressing and referring to an employee with their preferred name, gender, and pronoun.

Likewise, the proposed regs would expand discrimination against transgender workers beyond overt discrimination, such as failing to hire or terminating a transgender employee. Employers would also be in violation of the FEHA's prohibition of discrimination against transgender workers by:

  • Requiring an employee to use a particular facility, or undergo or provide proof of any particular medical treatment to use facilities designated for use by a particular gender;
  • Requiring an employee to dress or groom themselves in a manner inconsistent with their gender identity or gender expression;
  • Requiring an applicant or employee to state whether they are transgender;
  • Considering an applicant to have been untruthful by identifying themselves on an employment application in a manner inconsistent with their assigned sex at birth;
  • Enquiring as to or requiring proof of an individual's sex, gender, gender identity, or gender expression as a condition of employment, unless the employer demonstrates a bona fide occupational qualification or the employee initiates communication with the employer regarding adjustments to their working conditions; and
  • Discriminating against an employee for undergoing a social transition (changing their gender presentation) or a physical transition (receiving medical treatment including hormone therapy or gender reassignment surgeries).

The regulations also propose to revise current regulations regarding Bona Fide Occupational Qualifications, workplace safety, fringe benefits, and working conditions, by replacing binary gender language (i.e., "male" and "female") with gender neutral language to indicate that the same regulations apply to transgender and gender non-conforming employees and applicants.

These new regulations are scheduled for their next round of public hearing and comment on June 27, 2016. We will provide an update on the latest developments. In the meantime, employers should familiarize themselves and their supervisors with the current guidance and proposed regulations to answer questions they may have about transgender applicants and employees and to understand the emerging standards to avoid liability for discrimination. Attorneys in Seyfarth's California Workplace Solutions Group are available to help.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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