California Governor Signs SB 396 Requiring Training on Gender Identity Harassment

shutterstock_gender diversityOnly a few months after the California Department of Fair Employment and Housing amendments to the FEHA regulations went into effect on July 1, 2017, which centralize, clarify, and expand protections for transgender individuals against discrimination, California Governor Jerry Brown signed Senate Bill 396 into law on October 15, 2017.  Senate Bill 396 goes even further in facilitating a discrimination-free workplace by requiring employers to provide gender identity and sexual orientation training to supervisory employees.

The FEHA prohibits harassment and discrimination based on protected classes, which includes people who identify as transgender, providing protections on the basis of both gender identity and gender expression. California law also specifically protects an employee’s right to appear or dress consistently with his/her gender identity or gender expression, unless the employer can establish a business necessity defense.  As explained in a previous post, however, the new regulations significantly increase protections for transgender employees by specifying rules concerning access to bathroom facilities, grooming and dress standards, and recording the gender and name of employees.  Additionally, the new regulations include an amendment that prohibits employers from seeking gender- or sex-related information from applicants and employees, such as proof of an individual’s sex, gender, gender identity, or expression.

In an effort to help prepare employers for these new requirements and the protections extended to transgender employees, the California Legislature drafted Senate Bill 396 to require employers to provide training to supervisors based on gender identity, gender expression, and sexual orientation.  FEHA already requires employers with 50 or more employees to provide supervisors sexual harassment training within 6 months of becoming a supervisor, and at least once every two years.  Therefore, employers can incorporate the specific requirements of Senate Bill 396 – gender identity, gender expression, and sexual orientation – into that training.  Under Senate Bill 396, employers must ensure that that training is performed by an individual with knowledge and expertise in these topics, and must include practical examples.

As of January 1, 2018, employers are also required to post a poster developed by the Department of Fair Employment and Housing regarding transgender rights in a prominent and accessible location in the workplace.  In addition to this posting, employers must distribute an information sheet that will be created by the Department of Fair Employment and Housing to its employees, unless the employer provides equivalent information to its employees that contains, at a minimum, information on the following:

  1. The illegality of sexual harassment;
  2. The definition of sexual harassment under applicable state and federal law;
  3. A description of sexual harassment, utilizing examples;
  4. The internal complaint process of the employer available to the employee;
  5. The legal remedies and complaint process available through the department;
  6. Directions on how to contact the Department of Fair Employment and Housing; and
  7. Protections from retaliation.

Employers can satisfy this requirement by updating their anti-discrimination/anti-harassment policies in their employee handbooks.

In light of the recent amendments to the FEHA regulations and Senate Bill 396’s new supervisor training requirement, California employers should take time to review their employment applications and employment policies to ensure that their policies reflect the FEHA’s prohibition against transition discrimination and gender identity and expression discrimination.  Additionally, employers should update their training materials and programs for supervisors to ensure that they are properly trained on this subject.  In the interim, employers should instruct supervisors to refer any questions or concerns related to gender identity, gender expression, or sexual orientation promptly to human resources.  Swiftly implementing these policy changes and conducting new training for supervisors will help ensure compliance with the new regulations and limit the potential for workplace issues and FEHA violations.

Employment and OSHA in the Workplace Bathroom: Transgender, ADA, Sanitation and Accessibility Issues

By Jordan B. Schwartz and Eric J. Conn

Gender Neutral Bathroom SignThe Department of Justice (“DOJ”) and the Occupational Safety and Health Administration (“OSHA”) have long enforced accessibility and sanitation standards for restrooms for workers and the public – an idea that generally makes sense viewed as a health and safety concern.  In the last few years, however, new policies at the state and federal levels on transgender issues mean all employers must pay particular attention to rules and enforcement regarding access to restrooms.

Indeed, OSHA has now found a way into the highly political and social issue of transgender equality by making its own policy pronouncements on access by workers to restrooms of the gender with which they identify.  In 2015, Assistant Secretary of Labor for OSHA Dr. David Michaels explained the Agency’s position on this when he unveiled a new OSHA Guide to Restroom Access for Transgender Workers, he said:

“The core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”

The emergence of bathroom issues from a legal and regulatory standpoint is not limited to the transgender issue.  This article addresses the complexities of this subject and how it affects regulatory compliance and employment law liabilities.

Transgender Issues from an Employment Law Perspective

There are numerous employment law obligations for employers in the transgender area.  Title VII, for example, prohibits discrimination based on sex, which includes treating employees differently for failing to conform to sexual stereotypes.  The Attorney General has issued a memorandum expressing that Title VII specifically prohibits discrimination because Continue reading