Why it matters

California’s Fair Employment and Housing Council released new regulations that took effect July 1, 2017, attempting to provide guidance to employers on gender identity issues in the workplace. The regulations address several topics, from definitions of terms such as “gender identity” and “transitioning” to the use of facilities, reminding employers that they must abide by how the employee identifies, regardless of the employee’s sex assigned at birth. One section of the guidance discusses record keeping, explaining the prohibition on requiring employees to identify their gender identity, although employers may still ask workers to voluntarily provide this information. In addition to noting that it is unlawful for employers to impose any physical appearance, grooming or dress standard that is inconsistent with an individual’s gender identity or gender expression, the guidance notes that employee choice generally controls with regard to pronoun and name preferences. Employers should carefully review the new regulations and ensure compliance.

Detailed discussion

On July 1, 2017, new regulations related to employment discrimination were implemented by the California Fair Employment and Housing Council (FEHC) following a yearlong process of public comment and input.

“These regulations address issues of increasing importance to Californians,” Kevin Kish, director of the California Department of Fair Employment and Housing (DFEH), said in a statement about the regulations. “We encourage employers and employees alike to take note of the Council’s work in providing clarification and guidance in these areas of law.”

The regulations include six definitions, including modifications to the meaning of “gender expression” and “gender identity,” which now means “each person’s internal understanding of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.”

A new definition was added for the term “transitioning,” 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.”

Addressing the terms, conditions and privileges of employment, the sex of an employee shall have no bearing on issues such as compensation and fringe benefits, the FEHC wrote, and employers must make reasonable accommodations to alter working conditions if they pose a greater danger to the health, safety or reproductive functions of employees of one sex than they pose to individuals of another sex.

The new regulations make clear that “[e]qual access to comparable, safe, and adequate facilities shall be provided to employees without regard to the sex of the employee.” Workers should be permitted to use facilities that correspond to their gender identity or gender expression, and employers with single-occupancy facilities shall use gender-neutral signage (such as “Unisex,” “All Gender” or “Gender Neutral”), in line with California’s new law.

Employers may not require employees to undergo or provide proof of any medical treatment or procedure in order to use the facilities designated for use by a particular gender, nor may employers require an employee to use a particular facility. To respect the privacy interests of all employees, however, employers may stagger the schedules for showering, install shower curtains or use locking toilet stalls, the regulations said.

The fact that an individual is transgender or gender nonconforming, or that the individual’s sex assigned at birth is different from the sex required for the job, will not justify the application of the bona fide occupational qualification defense, the regulations explicitly stated. “Employers shall permit employees to perform jobs or duties that correspond to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth,” according to the regulations.

As for physical appearance, grooming and dress standards, the guidance established that it “is unlawful to impose upon an applicant or employee any physical appearance, grooming, or dress standard which is inconsistent with an individual’s gender identity or gender expression, unless the employer can establish business necessity.”

Employers should defer to the employee’s preferred name and gender identity absent a legally mandated obligation otherwise, the regulations explained, although an employer may request an applicant to identify gender solely on a voluntary basis for record-keeping purposes.

Additional rights were noted, including that 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, employers can make “a reasonable and confidential inquiry of an employee for the sole purpose of ensuring access to comparable, safe, and adequate multi-user facilities.”

Further, when an employee initiates communication with the employer regarding working conditions, nothing precludes the parties from communicating about sex, gender, gender identity or gender expression issues.

To read the Fair Employment & Housing Council Regulations Regarding Transgender Identity and Expression, click here.