Effective July 1, 2017, California employers became subject to new regulations, promulgated by the California Department of Fair Employment and Housing (DFEH), interpreting 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, located at 2 C.C.R. §1103, et seq., provide definitions for “gender expression,” “gender identity” and “transitioning.” They also provide guidance with regard to bathroom usage, pronoun usage and dress codes.
The new regulations enforce FEHA's prohibition against job applicant and/or employee discrimination based wholly or in part on an individual's sex, gender, gender identity or gender expression by expressly making it unlawful to discriminate against persons who are transitioning, have transitioned or are perceived to be transitioning to a gender other than that assigned at birth. Below is a brief summary of the new regulations.
Definitional changes and additions
The new regulations update the current definitions of “gender expression” and “gender identity” and add a definition for “transitioning” as follows:
- "Gender expression": The definition is expanded to include not only a person's gender-related appearance or behavior but also “the perception” of such gender-related appearance or behavior. 2 C.C.R. §11030(a).
- "Gender identity": This term is now defined to mean 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." 2 C.C.R. §11030(b).
- "Transitioning": This is a new term the regulations define as 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.” 2 C.C.R. §11030(f).
Prior regulations were silent on the issue of equal access to restroom facilities for individuals who are transitioning, have transitioned or are perceived to be transitioning. Pursuant to the new regulations, employers must provide equal access to facilities regardless of the sex of the employee, as the employee must be permitted to use facilities that correspond to their gender identity or gender expression. As discussed below, the new regulations prohibit employers from inquiring about, or requiring documentation of, an employee's sex, gender, gender identity or gender expression when an employee uses or requests to use a particular facility. Also, the Health and Safety Code was updated on March 1, 2017, to require employers to use gender-neutral signage for single-occupancy facilities under their control. The California Occupational Safety and Health Administration clarified that toilet facilities that are multiple-user or that contain other than a flush toilet (e.g., chemical toilets, recirculating toilets, combustion toilets, biological toilets and sanitary privies) are not covered by these new regulations and must be provided separately for males and females.
Prior regulations permitted employers to impose dress standards upon job applicants and/or employees so long as such standards did not discriminate on the basis of sex or significantly burden the individual in his or her employment. The updated regulations still permit employers to impose a dress code, but require that the dress code (i) serve a legitimate business purpose; (ii) not discriminate based on an individual’s sex, including gender, gender identity, or gender expression; and (iii) not impose upon an applicant or employee any standard of physical appearance, grooming or dress that is inconsistent with the individual’s gender identity or gender expression, unless the employer can establish a business necessity for doing so.
Preferred name and identity
The new regulations add a requirement that employers comply with an employee's request to be identified by a certain name or gender identity. Employers can only ignore an employee preference if they are under some legal obligation to identify the employee by his or her legal name or gender marker.
Documentation of gender
The new regulations prohibit employers from inquiring into, or as a condition of employment requiring an applicant or employee to produce documentation of, the applicant or employee's sex, gender, gender identity or gender expression unless the employer can establish a business necessity for such an inquiry.
- Employers should consider changing any written anti-discrimination policies to include express protections with relation to sexual orientation, gender identity and gender expression.
- Employers should also consider creating gender-transition protocols that address: (i) who in the organization is charged with helping a transitioning employee manage their workplace transition; (ii) what a transitioning employee can expect from management; (iii) what management’s expectations are for staff and transitioning employees; and (iv) what the general procedure is for implementing transition-related workplace changes, such as adjusting personnel and administrative records.
- If the employer has a single-user restroom that has the "male or female" geometric sign, it must be replaced with a unisex geometric sign.
- Finally, employers with dress codes should make sure that the code avoids gender stereotypes and is enforced consistently.
Employers should ensure that their policies and practices comply with these new regulations and that their managers and supervisors are trained on the new regulations. The Dentons Employment and Labor group is available to help employers audit their current policies and practices to ensure compliance with these new regulations, and to help assess organizational risk.
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