Effective July 1, 2017, California issued a new set of regulations expanding protections under the Fair Employment and Housing Act (“FEHA”) related to the transgender community.
The new regulations expressly prohibit discrimination against an individual who is transitioning, has transitioned or is perceived to be transitioning. California employers need to make sure that policies against harassment and discrimination specifically protect these employees.
The regulations provide a few examples of the “transitioning process” that include:
- An employee’s request for a name change or different pronoun usage.
- Restroom and facility usage.
- Participation in employer-sponsored activities, including sports teams, team-building projects or volunteering.
- Undergoing hormone therapy, surgeries, or other medical procedures.
Name and Gender Requests by An Employee
The new regulations also specify that employers must honor an employee’s request to go by a name, gender, or pronoun, including gender-neutral pronouns. The one exception is for use on a government-issued identification document and only if necessary to meet a legally-mandated obligation.
The new regulations prohibit employers from imposing physical appearance, grooming or dress standards that are inconsistent with an individual’s gender identity or gender expression, unless the employer can establish a business necessity.
The regulations also explicitly prohibit an employer from making inquiries that, directly or indirectly, identify an individual on the basis of sex, gender, gender identity or gender expression. This would include asking employees to identify their sex on an employment application or any other documents, including HR documents. It is critical for California employers to evaluate their forms and applications to ensure compliance.
Equal Access to Restrooms and Signage Requirements
California employers must allow employees to use a restroom or other facility (showers, locker rooms, etc.) that corresponds to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth and all single-occupancy facilities must use gender-neutral signage for those facilities, such as “Restroom,” “Unisex,” “Gender Neutral,” “All Gender Restroom,” etc.
If you would like more information or advice, please call Laura Freeman.