New California Guidance Regarding Transgender Employees and Lawsuit Settlement

California state law specifically prohibits discrimination on the basis of both gender identity and gender expression — regardless of the person’s assigned sex at birth. California law further specifically protects an employee’s right to appear or dress consistently with his/her gender identity or gender expression.

In this evolving legal area, employers have had questions regarding the exact nature of their obligations.

The California Department of Fair Employment and Housing (DFEH) recently issued new guidance for employers with suggestions on how to comply with the law.

The guidance makes the following suggestions:

  • Employers should not ask questions designed to detect a person’s sexual orientation or gender identity, such as questions about marital status, about a person’s body or whether they plan to have sex reassignment surgery or other procedures.
  • Employers who have a dress code should apply it consistently in a non-discriminatory manner. For example, a transgender person identifying as a woman must be allowed to dress in the same manner as non-transgender women and her compliance with the policy cannot be judged more harshly than non-transgender women.
  • All employees have the right to use a restroom or locker room that corresponds to the employee’s gender identity — regardless of the employee’s assigned sex at birth.
    • To provide options for workers and enhance privacy for all employees, employers, where possible, should create single-user or unisex restroom facilities, but should not force a transgender employee to exclusively use that facility.
    • This unisex or single stall bathroom can be used by any employee desiring increased privacy, regardless of the underlying reason. The use of a unisex single stall restroom should always be a matter of choice.

The guidance also notes that a transgender person does not need to have completed any particular transition in order to be protected by the law. An employer can’t condition its treatment or accommodation of a transitioning employee on completion of a particular step in the transition.

The DFEH announced that it released the guidance in response to its settlement of a lawsuit brought on behalf of a transgender individual who sought employment at a company in Sacramento. The company allegedly made an offer of employment on the condition that the applicant use the women’s restroom and locker room pending completion of female to male sex reassignment surgery. The applicant declined the offer. The superior court, in a case of first impression, refused to dismiss the case, commenting that the FEHA prohibits employers from requiring transgender workers to use restrooms and locker rooms based on their sex at birth.

As part of the settlement, the company agreed to adopt new policies to allow employees access to facilities that correspond with their gender identity and to provide training to all of its California employees.

While the guidance is not binding legal authority, it does provide the public information about how the DFEH will interpret the law and where the agency may focus enforcement efforts. In addition, the guidance, in this instance, is also based on federal agency interpretations and judicial or administrative decisions.

Source: CalChamber  |  2016 © Copyright Payroll Masters

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