The California Fair Employment and Housing Council (FEHC) has adopted new regulations relating to gender identity and expression which take effect on July 1, 2017. These regulations are the latest step in an ongoing effort to broaden applicability of the Fair Employment and Housing Act (FEHA) and, as a result, place tighter restrictions on employers’ consideration of gender when making employment decisions.
The FEHA currently prohibits discrimination on the basis of sex, gender expression, and gender identity, and the new regulations make some adjustments to the definitions of these terms.
Sex is currently defined as including: pregnancy; childbirth; medical conditions related to pregnancy, childbirth, and breast feeding; gender identity; and gender expression. Effective July 1, the definition of sex will include gender, as well as perception by a third party of one’s sex.
Gender expression, currently defined as “a person’s gender-related appearance or behavior,” will now include the perception of such appearance or behavior. Gender identity, currently defined as a person’s self-identification as transgender, or as a male or female gender different from their sex at birth, will now be defined as one’s “internal understanding” of their gender, or the perception of the person’s gender. The definition also expands the list of genders from the current female, male, and transgender, to also include “a combination of male and female” and “neither male nor female.”
The new regulations discuss “transitioning.” Transitioning is defined as a process some transgender people undergo to begin living as the gender with which they identify. Transitioning may include changes in names and pronouns, usage of facilities, participation in employer-sponsored activities (such as sports teams), or undergoing hormone therapy and other related medical procedures. Employers are prohibited from discriminating against individuals in transition, perceived to be in transition, or who have transitioned, when making hiring, promotion, and other employment decisions.
Sex and Gender Inquiries
Employers may not inquire about or require proof of an individual’s sex, gender, gender identity, or gender expression as a condition of employment. The only exceptions are that employers can request an applicant to provide this information solely on a voluntary basis for recordkeeping purposes, or when the employer can show a bona fide occupational qualification (BFOQ) for the classification or exclusion of a certain gender. Also, the regulations indicate employers and employees are not precluded from communicating about the employee's sex, gender, gender identity, or gender expression when the employee initiates communication with the employer regarding the employee’s working conditions.
Employers must honor an individual’s preference to be identified by a certain gender, name, or pronoun, including gender neutral pronouns. Employers will be permitted to instead use an employee’s gender or name as indicated on a government-issued form of identification only when doing so is necessary to meet a legal obligation.
Physical Appearance, Grooming, and Dress
Employers cannot impose any standards on physical appearance, grooming, or dress that are inconsistent with an applicant or employee’s gender identity or gender expression. The only exception is when the employer can establish a business necessity for the standard.
Use of Facilities
Finally, employers should be aware of new provisions that address facilities used by employees, such as restrooms and locker rooms. Employers must permit employees to use facilities that correspond to their gender identity or gender expression, regardless of their assigned sex at birth. Employers must also take feasible privacy-protectant measures as needed, such as installing locks on toilet stalls, maintaining schedules for showering, or installing shower curtains. Consistent with state law, if an employer has a single-occupancy facility for use by employees, the facility must be labeled with gender-neutral signage such as “Restroom,” “Unisex,” or “Gender Neutral.” Also, employers cannot require employees to provide any documentation or proof of gender before allowing them to use facilities designated for a particular gender. However, employers may make reasonable and confidential inquiries of employees for the purpose of ensuring that facilities are safe and adequate for use by all employees.
With the new regulations taking effect soon, employers should thoroughly review their policies and practices which may implicate gender identity or expression, as well as train their managers, supervisors, and human resources staff to ensure compliance with these significant changes to the FEHA regulations. You can find the new regulations here.
Miller Law Group exclusively represents business in all aspects of California employment law, specializing in litigation, wage and hour class actions, trials, appeals, compliance advice and counseling. If you have questions about these developments or other workplace obligations, please contact us at (415) 464-4300.
This Alert is published by Miller Law Group to review recent developments in employment law. This material is designed to provide informative and current information as of the date of the Alert, and should not be considered legal advice.