In May 2017, the California Department of Fair Employment and Housing (DFEH) approved new regulations regarding transgender identity and expression in the workplace. The regulations become effective July 1, 2017.
The new rules further expand the Fair Employment and Housing Act’s (FEHA) role in preventing discrimination in employment and housing on the basis of gender identity. In addition, the regulations describe some new policies that employers must implement, including the following:
Employers are now required to provide equal access to facilities regardless of the sex of the employee. Employees must be permitted to use facilities that correspond to the employee’s gender identity or gender expression. Employers must use gender-neutral signage for single-occupancy facilities under their control. They cannot require any proof of sex or gender for an employee to use a particular facility.
The new regulations add a definition of “transitioning” and prohibit discriminating against an individual who is transitioning, has transitioned, or is perceived to be gender transitioning. Transitioning is defined as a process in which an individual begins living as the gender with which they identify and can include changes in name usage, participation in employer-sponsored activities, undergoing hormone therapy, etc.
An employer cannot impose a dress standard that is inconsistent with an employee’s gender identity or expression in the absence of a business necessity.
Preferred Name and Identity
The new regulations require employers to abide by an employee’s request to be identified by a certain name or a certain gender identity. Employers can only insist on using an employee’s legal name or gender if it is otherwise required to meet a legally-mandated obligation.
An employer cannot inquire or require documentation on sex, gender, gender identity, or gender expression as a condition of employment.
Employers should ensure their policies comply with these new regulations regarding transgender identity and expression before July 1, 2017. Employers should also review their employee handbooks to make sure any policies contained therein comply with the new regulations.
Special thanks to Cole Lewis, Summer Associate, for his assistance in preparing this alert.