California Expands Protections for Transgender Employees

The California Fair Employment and Housing Council recently amended its regulations to expand protections for transgender employees. The amendments primarily address access to workplace facilities and when an employer can ask for information about an employee’s sex. The changes were effective July 1, 2017.

The amended regulations require employers to provide equal access to comparable, safe and adequate facilities, without regard to an employee’s sex. “Facilities” include restrooms, locker rooms, dressing rooms, dormitories and the like.

The definition of "sex" under the California Fair Employment and Housing Act, which already included gender identity and gender expression, now includes a third party's perceptions of these terms.

“Gender expression” means a person’s gender-related appearance or behavior and the perception of a person’s appearance or behavior, whether or not stereotypically associated with the person’s sex assigned at birth.

“Gender identity” means a person’s internal understanding of their gender, or the perception of their gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the sex assigned at birth, or transgender.

The amendments require employers to permit employees to use the facilities that correspond to their gender identity or gender expression, regardless of the employees' sex assigned at birth.

To respect employee privacy, employers are required to provide alternatives, such as locking toilet stalls, staggered showering schedules, and shower curtains.

Employers with single-occupancy facilities must use gender-neutral signage such as "Restroom," "Unisex," "Gender Neutral, or "All Gender Restroom." This is in addition to a new California law requiring companies that have single-occupancy toilets available for public use to have all-gender signage in place by March 1 of this year.

Note that on July 25, 2017, the Fair Employment and Housing Council gave notice of proposed emergency regulations that would permit employers in certain industries to keep non-flushing single-occupancy toilets marked separately for males and females. This is due to a conflict between the amended FEHC regulations and Cal/OSHA regulations. The industries in question are construction, general industry, agricultural operations, hazardous waste operations and emergency response.

The FEHC amendments generally prohibit an employer from asking about or requiring documentation of an employee's sex, gender, gender identity or gender expression. An employer may ask applicants to voluntarily provide their sex for recordkeeping purposes. An employer can discuss an employee's sex, etc., if the employee initiates the topic in connection with working conditions. An employer may also communicate confidentially with an employee solely for purposes of making sure the employee has access to appropriate multi-user facilities.

An employer is required to identify an employee by the employee's preferred name, gender, and pronoun. However, an employer may use the gender or legal name contained in an employee's government-issued identification if necessary to meet a legal obligation. An example of this would be using the name contained in documentation provided by an employee to complete an I-9 form, even if not the employee's preferred name.

California employers who have not already done so should evaluate their restrooms and other facilities for required changes, modify forms and policies as necessary, and plan for any issues that may arise in implementing the changes in their organizations. The changes should also be covered in employee harassment training.