By: Andrew J. Sommer
The California Office of Administrative Law has approved new regulations, effective July 1, 2017, expanding protections for transgender workers under California’s Fair Employment and Housing Act (FEHA). The FEHA prohibits workplace discrimination and harassment on the basis of gender identity or gender expression, among other protected classifications. These regulations specifically address protections for transgender employees, including access to bathroom facilities, grooming and dress standards and recording the gender and name of employees.
Recognition of Transition Discrimination
While the FEHA addresses discrimination because of the gender identity or gender expression of an employee or applicant for employment, these new regulations make it unlawful to discriminate against an individual “who is transitioning or has transitioned or is perceived to be transitioning.” Transitioning is defined as “a process some transgender people go through to begin living as the gender with which they identify” including changes in name and pronoun usage, facility usage, participation in employer-sponsored activities, or undergoing hormone therapy, surgeries or other medical procedures.
Recording of Gender and Name
These regulations require employers to abide by an employee’s request to be identified with a preferred gender, name, or pronoun. An employer is permitted, however, to use an employee’s gender or legal name as indicated in a government-issued identification document, even if inconsistent with the employee’s preferred gender or name, as necessary to meet a legally-mandated obligation.
Employers are also prohibited from requiring an applicant or employee to disclose whether the individual is transgender generally and specifically on job applications. Yet, the regulations make clear that an employer may communicate with an employee about the employee’s gender, gender identity or gender expression once the employee “initiates communication with the employer regarding the employee’s working conditions.”
Grooming and Dress Standards
The new regulations clarify that it is unlawful for an employer to impose upon an applicant or employee any physical appearance, grooming or dress standard that is “inconsistent with an individual’s gender identity or gender expression,” unless the employer can establish a business necessity defense.
Access to Bathrooms and other Facilities
Under these regulations, employers must now permit an employee to use bathrooms and other facilities that correspond to the employee’s “gender identity or gender expression, regardless of the employee’s assigned sex at birth.” An employer may not require an employee to use a particular facility. Employers are required to provide “feasible alternatives” to protect transgender employees’ privacy such as locking toilet stalls, staggered schedules for showering and shower curtains.
While these regulations recognize that an employer may make a “reasonable and confidential inquiry” for the sole purpose of ensuring access to comparable, safe and adequate multi-user facilities, the employer may not require employees to provide proof of any medical treatment or procedure, or provide any identity document, to use facilities designated for use by a particular gender.
In addition to multiple-user facilities, the regulations address the required signage for single-user toilet facilities, which must be identified as all-gender toilet facilities under a new law (Assembly Bill 1732) that was effective March 1, 2017. The regulations provide that employers must use gender-neutral signage for these facilities such as “Restroom,” “Unisex,” “Gender Neutral,” or “All Gender Restroom.”
It is important to note that federal agencies during the Obama administration have adopted similar positions concerning transgender employees’ access to bathroom facilities. Specifically, in 2015 the United States Equal Employment Opportunity Commission (EEOC) found that the Department of the Army discriminated against a transgender female employee under Title VII when it barred her from using the restroom consistent with her female transgender identity. Tamara Lusardi v. John M. McHugh, Secretary of the Army, EEOC DOC 120133395 (April 1, 2015). In addition, the Occupational Safety and Health Administration (Fed/OSHA) has published guidance for employers regarding restroom access for transgender workers. The publication states that employees should have access to restrooms that correspond to their gender identity and should not be asked to provide any medical or legal documentation of their gender identity.
Best Practices for California Employers to Ensure Compliance
In light of these new regulations, it is advisable that California employers update their personnel policies to recognize a broad prohibition against transition discrimination (in addition to protections for gender identity and expression), as well as identify procedures for transgender employees to request access to facilities corresponding to their gender identity and any other change in working conditions necessitated by their gender identity or expression. Equally important, employers should ensure that supervisors are trained on these issues including that they refer to transgender employees by their preferred name, gender and pronoun, and consider requests for changes in working conditions. Ideally, such matters should be referred to the Company’s Human Resources representatives, who are usually best equipped to handle such matters effectively and confidentially. A mix of policy changes and training will be critical in ensuring compliance with these regulations.