On February 17, 2016, the California Department of Fair Employment and Housing (DFEH) announced that it was issuing a guidance on how to comply with the Fair Employment and Housing Act (FEHA), which was geared toward California employers that employ transgender employees. The new one-page guidance, “Transgender Rights in the Workplace,” defines “gender expression,” describes two kinds of gender transitions, provides answers to three frequently asked questions for employers, and describes how to file a pre-complaint inquiry with the DFEH.
According to the DFEH’s statement, the new guidance is consistent with a recent federal decision— the U.S. Equal Employment Opportunity Commission’s (EEOC) April 2015 ruling in Lusardi v. McHugh, In that case, the EEOC ruled in favor of a transgender worker who was employed by the federal government in a dispute over restroom use. The DFEH’s guidance is also consistent with the Occupational Safety and Health Administration’s (OSHA) June 2015 guidance on best practices regarding transgender employees’ bathroom access.
“Gender Expression” Defined
The guidance states that transgender employees are protected by FEHA, and that the definition of “gender expression” under state law is a “person’s gender-related appearance and [b]ehavior whether or not stereotypically associated with the person’s assigned sex at birth.”
Two Kinds of Gender Transition: Social and Physical
The guidance defines a social gender transition as one that “involves a process of socially aligning one’s gender with the internal sense of self (e.g. changes in name and pronoun, bathroom facility usage, participation in activities like sports teams).” A physical transition “refers to medical treatments an individual undergoes to physically align their body with internal sense of self (e.g. hormone therapies or surgical procedures).”
The guidance specifically notes that to be protected under the law, a transgender person is not required to have completed any particular step in a gender transition, and “[a]n employer may not condition its treatment or accommodation of a transitioning employee on completion of a particular step in the transition.”
The guidance provides answers to three questions: (1) What is an employer allowed to ask? (2) How should employers implement dress codes and grooming standards? (3) What are the obligations of employers when it comes to bathrooms, showers, and locker rooms?
1. What is an employer allowed to ask?
The guidance states that employers “should not ask questions designed to detect a person’s sexual orientation or gender identity, including asking about his/her marital status, spouse’s name, or relation of household members to one another.” Questions regarding an applicant’s body and plans to have surgery would be covered by the Health Insurance Portability and Accountability Act’s prohibitions.
2. How should employers implement dress codes and grooming standards?
The guidance answers the question on dress codes by first reaffirming that California law prohibits employers from denying employees the right to dress according to their gender identity. Thus, employers must permit a transgender woman “to dress in the same manner as non-transgender women.” Moreover, employers may not judge a transgender woman’s compliance with a dress code more harshly than they would judge a non-transgender woman’s compliance with the dress code.
3. What are the obligations of employers when it comes to bathrooms, showers, and locker rooms?
“Under California law, all employees have the right to use restroom and locker room facilities that correspond to their gender identity, regardless of their assigned sex at birth,” said Director of DFEH Kevin Kish in the DFEH’s statement.
The guidance reiterates this point. It also suggests that “where possible,” employers “should provide an easily accessible unisex single stall bathroom for use by any employee who desires increased privacy, regardless of the underlying reason”—including employees who do not want to share a restroom with a transgender employee. According to the guidance, employers should not force employees to use a single stall bathroom; “use of a unisex single stall restroom should always be a matter of choice.”
How to File a Pre-Complaint Inquiry
The guidance offers several ways employees may file a pre-complaint inquiry, including:
- calling the DFEH Communication Center at (800) 884-1684;
- completing a pre-complaint inquiry form and returning it via U.S. mail to a DFEH office location;
- emailing a completed pre-complaint inquiry form to email@example.com; and
- using the DFEH’s online system.
This guidance serves as another reminder to California employers of the rights of transgender employees, coming on the heels of the law Governor Jerry Brown signed in October 2015, protecting transgender employees whose employers engage in business with state agencies.
According to Betsy Johnson, Managing Shareholder of the Los Angeles office of Ogletree Deakins, “As an initial matter, California employers must update their antidiscrimination and harassment policies to expressly include ‘gender,’ ‘gender identity,’ and ‘gender expression’ in the list of protected categories. In addition, employers should consider updating their dress code policies to make them ‘gender neutral.’”
She added: “Employers must also take proactive steps to prevent discrimination and harassment against transgender employees. Such steps may include providing supervisory training on unlawful discrimination, harassment, and retaliation; diversity training for all employees; and educational information to employees.”