The New California Regulations, Part II: The Transgender Workforce

The California Office of Administrative Law recently approved regulations drafted by the California Fair Employment and Housing Council. These new regulations, covering the entire gamut of employment law topics within the Fair Employment and Housing Act (FEHA), will go into effect on April 1, 2016. 

In this blog series, we will highlight some of the most significant aspects of the regulations that clarify an employer’s obligations in the workplace. The first article in the series, “The New California Regulations, Part I: Preventing and Correcting Wrongful Behavior,” covered an employer’s obligation to take all reasonable steps to prevent and correct wrongful behavior in the workplace. The second topic, which we will cover here, is both new regulations and guidance concerning an employer’s obligations towards its transgender workforce.

The Council’s Regulatory Definitions

While the California Code of Regulations previously defined “sex,” the amendments now include definitions for “gender expression,” “gender identity,” and “transgender.” 

• The regulations define “gender expression” as “a person’s gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth.” Cal. Code Reg. Section 11030(a).
• The regulations define “gender identity” as “a person’s identification as a male, female, a gender different from the person’s sex at birth, or transgender.” Cal. Code Reg. Section 11030(b).
• Lastly, the regulations define “transgender” as “a general term that refers to a person whose gender identity differs from the person’s sex at birth. Cal. Code Reg. Section 11030(b).  A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth. A transgender person may or may not identify as ‘transsexual.’” Cal. Code Reg. Section 11030(e).

In addition to defining these terms, the regulations refer to the fact that gender identity and gender expression are protected categories under the FEHA, thus emphasizing the prohibition against discriminatory or harassing conduct on those bases. 

The DFEH’s Guidance

Many issues might arise in the workplace with respect to gender identity and gender expression that employers need to be prepared to address. In addition to the Council’s regulations, the Department of Fair Employment and Housing (DFEH) issued new guidance concerning an employer’s obligations towards its transgender workforce.

Social Versus Physical Transition

Preliminarily, the guidance defines and distinguishes a social transition from a physical transition. The guidance defines a social transition as the process of socially aligning one’s gender with his or her internal sense of self, including changing his or her name and pronoun and use of a bathroom facility. A physical transition differs, and refers to medical treatments an individual undergoes to physically align his or her body with his or her internal sense of self, including hormone therapies or surgical procedures. Critically, the guidance notes that a transgender person does not need to complete any particular step in a gender transition in order to be protected by the law. What is more, an employer may not condition its treatment of a transitioning employee on a completion of a particular step in the transition. 

Allowable Versus Unlawful Inquiries

The guidance also clarifies an employer’s obligations towards transgender applicants and employees. For example, the guidance cautions employers against asking applicants questions designed to detect a person’s sexual orientation or gender identity, including inquiries about a person’s marital status, spouse’s name, or relation of household members towards one another. Employers may, however, ask for an applicant’s employment history, personal references, as well as other nondiscriminatory information.

Dress Code Issues

Employer dress codes must allow employees to dress in a manner suitable for that employee’s gender identity, and employers must enforce dress codes in a nondiscriminatory manner. For example, employers must allow a transgender employee who is presenting as a female to dress in the same manner as a non-transgender woman, and employers may not judge a transgender employee’s compliance with a company dress code more harshly than it judges a non-transgender woman’s compliance. 

Restrooms, Locker Rooms, etc.

According to the guidance, employees also have a right to use restrooms or locker rooms that correspond to their gender identities, regardless of their assigned sex at birth. According to the DFEH’s guidance, where possible, employers may provide an easily accessible unisex, single stall bathroom for use by any employee who desires increased privacy, regardless of the underlying reason. Use of this bathroom, the guidance notes, should always be a matter of employee choice. 

Although this guidance only applies to California employers, it is consistent with the Equal Employment Opportunity Commission’s interpretation of Title VII of the Civil Rights Act of 1964 in Lusardi v. McHugh. According to that ruling, prohibiting transgender individuals from using bathrooms consistent with their gender identities amounts to gender discrimination under current law. The guidelines are also consistent with the Occupational Health and Safety Administration’s guidance on best practices regarding bathroom access.

Practical Takeaways for Employers

• Focus on employee choice. Use the employee’s preferred name and pronoun, and enforce this usage among other employees. Employers may not require transgender employees to use a unisex stall, though it should be made available for all employees who choose to use it.   
• Use the correct terminology. While the term “transgender” is generally acceptable, other terminology can be viewed as offensive. Ensure that your human resources staff, managers, and supervisors understand and avoid the terminology that could be viewed as offensive.
• Update harassment and discrimination policies. Make sure your policies are updated to include gender, gender identity, and gender expression as protected categories.
• Update dress code policies. Employers may choose to make dress code polices gender-neutral and apply them consistently among all employees. Employers with dress codes requiring male and female employees to dress differently may want to specifically address transgender employees as well.    
• Train key employees. Provide guidance or training for managers and supervisors on an as-needed basis.