DFEH Approves New Transgender Protections and Guidelines

The California Department of Fair Employment and Housing has approved new guidelines and protections for transgender people in the workplace to be effective July 1, 2017. The new amendments aim to clarify existing law and further the protection of transgender people from discrimination at work. The new legislature provides transgender rights including equal access to bathrooms and other facilities, freedom to dress differently than what is typically associated with one’s gender, and the ability to withhold information regarding one’s name and gender to the employer. Below is a detailed list of the expanded areas.

  • Definitions:
    • The new amendments elaborate on the definition of key words including gender expression, gender identity, sex, sex stereotype, and transgender.
    • The document also adds onto the list of terms with the word “transitioning”, which it defines as “a 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. This process may include, but is not limited to, changes in name and pronoun usage, facility usage, participation in employer-sponsored activities (e.g. sports teams, team-building projects, or volunteering), or undergoing hormone therapy, surgeries, or other medical procedures.”
  • Restrooms:
    • The regulations state that employers must provide “comparable, safe, and adequate” access to facilities, and the employees shall be permitted to use the facilities that correspond to the employee’s gender identity or expression.
    • Single-occupancy facilities must use gender neutral signs.
  • Employees will not need to provide proof of medical treatments to use a facility of a gender different than their assigned sex.
  • Employers cannot condition “fringe benefits” upon an employee’s sex or gender identity.
  • Employers may not force employees to dress according to their gender identity, unless the employer can prove that it is a necessity to the business.
  • Recording of Gender and Name: Inquiries that directly or indirectly identify an individual on the basis of sex, including gender, gender identity, or gender expression, are unlawful unless the employer establishes a permissible defense. For recordkeeping purposes, an employer may request an applicant to provide this information solely on a voluntary basis.
  • An employer is allowed to use an employee’s gender or legal name as indicated in a “government-issued identification document” if and only if it is necessary to meet a “legally mandated obligation”. Otherwise, the employer must use the employee’s gender identity and preferred name.
  • Additional Rights:
    • It is unlawful to deny employment to an individual based wholly or in part on the individual’s sex, gender, gender identity, or gender expression.
    • It is unlawful to discriminate against an individual who is transitioning, has transitioned, or is perceived to be transitioning.
    • It is unlawful for employers and other covered entities to inquire about or require documentation or proof of an individual’s sex, gender, gender identity, or gender expression as a condition of employment”
      • However, an employer may assert a Bona Fide Occupation Qualification defense, which is the defense that the employer only considered qualities that he or she is legally allowed to consider when deciding to not hire or fire someone.
      • In addition, an employer may discuss with an employee their sex, gender, gender identity, or gender expression if the employee initiates communication.

Background

The Department of Fair Employment and Housing (DFEH) protects California citizens from discrimination and enforces laws regarding unfair treatment in employment, housing, and public accommodations. Regarding employment, the Fair Employment and Housing Act (FEHA) protects employees from discrimination because of race, color, ancestry, national origin, religion, creed, age (over 40), disability (mental and physical), sex, gender (including pregnancy, childbirth, breastfeeding or related medical conditions), sexual orientation, gender identity, gender expression, medical condition, genetic information, marital status, and military or veteran status.

If you have been subject to discrimination at work, please call 949-379-6250 for a free consultation. For more information on how to obtain a sex discrimination attorney, see our page on the topic.

Full Fair Employment & Housing Council Regulations Regarding Transgender Identity and Expression

California Department of Fair Employment and Housing

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