California rules on transgender employees take effect

The California Department of Fair Employment and Housing has issued final regulations regarding gender identity that took effect this past Saturday, July 1.

Employers should note that the expansion of legal protections in California against sex or gender discrimination to include a person’s gender identity and gender expression have been in effect since January 1, 2012. The new regulations are intended to provide more clarity concerning the definitions of “gender identity” and related terms, to address key topics concerning dress, names and pronouns, access to restrooms and other facilities, as well as the collection and use of gender information by employers.

Highlights include the following:

Physical Appearance/Dress Standards. It will now be unlawful in California to impose any physical appearance or dress standard on an applicant or employee that is inconsistent with the individual’s gender identity or gender expression, unless there is a business necessity.

Identity. Employers should address employees by their preferred gender, name, or pronoun. However, it is permissible to use an employee’s biological sex or legal name (for example, on a government-issued ID like a driver’s license or passport) to meet a legally mandated obligation, such as tax reporting.

Transitioning Employees. The regulations define “transitioning,” in part, as a process by which an individual begins living as a member of the gender with which they identify. The law now clearly prohibits discrimination against a person who is transitioning, has transitioned, or is perceived as transitioning.

Restrooms. Equal access must now be provided to restroom facilities that correspond to the employee’s gender identity or gender expression. In other words, employees must be allowed to use the restroom of the gender with which they identify.

Separately, the California Legislature is considering a bill, SB 396, which is expected to be enacted and will affect mandatory harassment training for supervisors. It will require employers with 50 more employees to include, as a component of sexual harassment training, “additional training inclusive of harassment based on gender identity, expression and sexual orientation.”

Employer policies for California-based employees should be amended to comply with these regulations as soon as possible. Employee handbooks should also be reviewed to assure that existing policies in areas such as mandatory dress codes do not run afoul of the regulations. Employers should consider conducting short informational sessions with Human Resources and other key management so that they are equipped to respond to issues as they arise.

Please contact a California Constangy attorney if you have a question about these new regulations or want to discuss the impact on your workplace.

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