In May of 2017, the California Department of Fair Employment and Housing (DFEH) approved new regulations pertaining to gender identity and gender expression in the workplace. These regulations became effective July 1, 2017.
The newly passed regulations do not create new law; but, they provide clarification on existing law. All California employers should be aware of these clarifying regulations, so that the employer can ensure its policies and procedures comply with California law.
Below, find a brief summary of the relevant modifications to existing California law brought about by the DFEH’s new regulations. Take the time to get to understand these regulations, so to avoid future non-compliance and resulting liability.
New Definitions
The new regulations expressly define the term “transitioning” as:
“[T]he process some transgender people go through to begin living as the gender which they identify, rather than the sex assigned to them at birth. This may or may not include changes in name and pronoun, bathroom, facility usage, participation in activities like sports teams, hormone therapy, sex reassignment surgery, or other medical procedures.”[1]
Transitioning persons do not constitute a new protected category of persons; rather, the DFEH’s new regulations explain and define the process of transitioning. Other additions to the regulations, as described below, prohibit discrimination based on a person’s past or present transitioning experience.[2]
Working Conditions – Equal Access to Facilities
The new regulations ensure that all employees have equal access to the employer’s facilities (including restrooms, locker rooms, dressing rooms, dormitories, etc.) “without regard to the sex of the employee.”[3] This means that an employer is required to “permit employees to use facilities that correspond to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth.”[4]
If a transitioning employee wants to use an employer-provided facility that coincides with the employee’s gender identity – though that facility does not coincide with the sex assigned to that employee at birth – an employer is prohibited from requiring that the employee “undergo, or provide proof of, any particular medical treatment[,]” which would indicate to the employer that the employee is, in fact, transitioning.[5] Put simply, an employer cannot require proof of gender before it allows an employee to use a particular facility.
It’s important for employers to realize that employees are expressly given the right to use the facility corresponding to their gender identity and/or expression.[6] An employer cannot refuse to allow an employee to use the facility coinciding with the employee’s gender identity and/or expression simply because it makes other employees uncomfortable. Rather, an employer should do its best to mitigate such discomfort by providing individual facilities to employees, or look to secure individual privacy interests within multi-user facilities by providing things such as “locking toilet stalls, staggered schedules for showering, shower curtains, or other method[s] of ensuring privacy.”[7]
Employers who have single-user facilities, rather than multi-user facilities, at the workplace are required to use gender-neutral signage for such facilities.[8] For example, an employer should refer to a single-user facility as restroom, unisex restroom, gender-neutral restroom, or all-gender restroom.[9] An employer may use whatever terminology it wants to describe a single-user facility, so long as the language used is gender-neutral.
Physical Appearance, Grooming, and Dress Standards
The new regulations clarify that it is unlawful for an employer to require an individual employee to dress or groom themselves in a manner inconsistent with the employee’s gender identity or gender expression.[10] However, an employer can impose upon employees grooming or dress standards if the standards (a) serve a legitimate business purpose, and (b) do not discriminate based on an individual employee’s sex (including gender, gender identity, or gender expression).[11]
For example, an employer whose business is food service can require all employees to wear their hair up and to use a hair-net if the employee’s hair is over a certain length. There is a legitimate business reason behind this action – namely, to make sure the customers’ food is not contaminated.
However, that same employer cannot impose the hair-net requirement only on female employees. Although the employer may believe the distinction is reasonable, given that women often have longer hair than men, the employer’s rule would discriminate based on the employees’ sex, which – as clarified by the new regulations – is unlawful in California.
Recording Gender and Name
The new regulations make clear that an employer is forbidden from inquiring as to whether an applicant or employee is transgender.[12] Moreover, if an application requires a potential employee to identify as either male or female, an applicant’s identifying with a gender other than the applicant’s gender at birth (or presumed gender) is not fraudulent.[13] Again, an employer is generally prohibited from – at any time – requiring proof of the individual applicant or employee’s gender.[14]
If an employer receives a request from an employee to identify the employee “with a preferred gender, name, and/or pronoun[,]” the employer should do all that is in its power to accommodate the employee and comply with this request. An employer who fails to do so may incur legal liability. Employers should have a policy or practice to implement such requests.
For example, an employer who receives a request by an employee to change the employee’s gender pronoun (i.e. from he to she, from Mr. to Ms., etc.), the employer should notify management so that management can ensure lower-level employees are complying with the employee’s request. Moreover, an employer should take prompt action to accommodate the employee’s request by changing things within its control, such as the employee’s email address, name on business cards, on-desk name placard, locker-room name tag, etc.
However, notwithstanding an employee’s request, an employer may (and often must) use “the employee’s gender or legal name as indicated in a government-issued identification document[,]” “if it is necessary to meet a legally-mandated obligation.”[15] For example, despite an employee’s request to be called a name other than the employee’s legal name, the employer should still continue to use the employee’s legal name on tax-related documents and payroll records, as required by law.
Employee Initiated Communication
An employer is free to openly communicate with the employee about issues related to gender identity and/or expression when the employee initiates the communication.[16] In fact, doing so would likely be beneficial for all parties involved, including the effected employee and the employer.
Final Thoughts
Employers should ensure that they understand the impact these recently passed regulations will have on their day-to-day operations.
Please contact Sagaser, Watkins & Wieland PC at 559-421-7000 if you have any questions regarding these regulations or need assistance on implementing compliant policies and procedures at your workplace.
Stay up to date with recent developments in California and Federal law that may impact your business by regularly checking our website at /.
[1] 2 CCR §11030(f).
[2] See id. at §11034(i)(2-4).
[3] Id. at subdiv. (e)(2).
[4] Id. at subdiv. (e)(2)(A).
[5] Id. at subdiv. (e)(2)(C).
[6] See id. at subdiv. (e)(2)(A) (“Employers shall permit employees to use facilities that correspond to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth.”)
[7] Id. at subdiv. (e)(2)(B).
[8] Id. at subdiv. (e)(2)(D).
[9] Id.
[10] Id. at subdiv. (g).
[11]Id.
[12] Id. at subdiv. (h)(1).
[13] Id. at subdiv. (h)(2).
[14] See id. at subdiv. (i)(1).
[15] Id. at subdiv. (h)(4).
[16] Id. at subdiv. (i)(1).