On July 1, 2017, new California regulations protecting transgender individuals took effect. For awhile the protected classes under California’s Fair Employment and Housing Act have included gender identity and gender expression. The new regulations provide additional protections and can be found here.
The new regulations add protections for those individuals that are transitioning, which is the 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. The process can include changes in name and pronoun usage, facility usage, or undergoing hormone therapy, surgeries, or other medical procedures. Employers cannot discriminate in terms and conditions of employment against someone who is transitioning, has transitioned, or is perceived to be transitioning.
In addition, the new regulations specific that employers must 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. If an employer has a single-occupancy facility then the employer must use gender-neutral signage such as “Restroom,” “Unisex,” “Gender Neutral,” “All Gender Restroom”, etc. In order to respect the privacy of all employees, employers are to provide feasible alternatives such as locking toilet stalls, staggered schedules for showering, shower curtains, etc. However, an employer cannot require an employee to use a particular facility. Employees cannot be required to provide proof to use facilities designated for a particular gender. Finally, the regulations do not prohibit an employer from making a reasonable and confidential inquiry of an employee for the sole purpose of ensuring access to comparable, safe, and adequate multi-user facilities.
The new regulations state that it is unlawful for an employer to impose on an applicant or employee any physical appearance, grooming or dress standard which is inconsistent with an individual’s gender identity or gender expression, unless the employer can establish business necessity. For an employer to assert business necessity successfully the employer must prove that an overriding legitimate business purpose exists such that the practice is necessary to the safe and efficient operation of the business and the practice effectively fulfills the business purpose it is supposed to serve. In addition, there must not be an alternative practice that will accomplish the same business purpose that has a lesser discriminatory impact.
If an employee requests to be identified with a preferred gender, name and/or pronoun, including a gender-neutral pronoun, employers are required to abide by the employee’s preference. However, employers are permitted to use an employee’s gender or legal name as indicated on government-issued identification documents only when it is necessary to meet a legally-mandated obligation. Employers cannot discriminate against an applicant that fails to designate as male or female on an employment application. In addition, if employers have recordkeeping requirements, such as for an EEO-1 report, they can only ask applicants voluntarily to disclosure their gender.
Finally, it is unlawful for employers to inquire about or require documentation or other proof of an individuals’ sex, gender, gender identity, or gender expression as a condition of employment. However, an employer and an employee can communicate about the employee’s sex, gender, gender identity, or gender expression when the employee initiates the communication with the employer regarding the employee’s working conditions.
It important for employers to look at their applications and new hire forms to ensure that employees can self-identify as gender-neutral and that self-identification is voluntary. Also, I do recommend training managers about these new regulations as I do think it will be easy for them to misstep. This should include sensitivity training. Employers also need to inspect their restroom signage and other facilities to ensure compliance. Finally, review EEO, harassment and dress code policies for compliance.
The picture I have included with today’s post is from our trip to Death Valley in December 2016. It is of Badwater Basin. Badwater Basin has the lowest elevation in North America at 279 feet below sea level. It is amazing that you get to walk on the salt-crusted layer.