February 26, 2016
The California Fair Employment and Housing Act (“FEHA”) prohibits unfair employment practices against an individual based on specified protected categories. (Cal. Gov. Code § 12940.) California extended FEHA protection to transgender individuals in 2012, amending FEHA to include gender identity and gender expression categories. The FEHA defines “gender expression” to mean a “person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” (Cal. Gov. Code § 12926(r)(2).) On February 17, 2016, the Department of Fair Housing and Employment (“DFEH”) issued guidance regarding transgender rights in the workplace. Click here: Transgender Rights in the Workplace
The DFEH issued its guidance in response to a recent lawsuit filed by a transgender individual who sought employment from a private firm. As the law regarding transgender workers was unclear, the firm elected to extend a conditional offer of employment. Under the terms of the conditional offer, the applicant had to use shower, locker room and restroom facilities inconsistent with the individual’s gender identity and expression until the applicant underwent sex reassignment surgery. The applicant declined the offer and sued, claiming that the firm violated the FEHA by engaging in discrimination based on the applicant’s transgender status.
The DFEH’s guidance is an attempt to better educate employers on how to comply with the FEHA’s protections for transgender individuals. First, the guidance highlights that transgender individuals may transition socially and/or physically. A social gender transition may involve an individual changing his or her name, pronoun, dress, and usage of bathroom facilities. A physical gender transition may involve an individual undergoing medical treatment to physically alter his or her body to match the gender with which he or she identifies. The DFEH instructs that an individual does not need to complete any particular step in either transition to be protected under the FEHA.
Second, the guidance discusses several potential trouble areas. It notes that employers cannot ask questions that implicate an applicant’s sexual orientation, gender identity, or marital status. Further, employers should not ask questions regarding an applicant’s body or potential surgery, as such information may fall under the protections of the Health Insurance Portability and Accountability Act (“HIPAA”).
Access to restrooms and locker rooms also may pose issues. The guidance emphasizes that transgender individuals have the same right to safe and appropriate restroom and locker facilities as others do. Transgender employees therefore have the right to use a restroom or locker room that corresponds to the employee’s gender identity. The DFEH suggests that employers provide unisex single occupant bathrooms where possible. However, the use of a unisex single stall restroom must still be a matter of choice. If non-unisex restrooms are also available, an employer cannot force an employee to use a unisex single stall restroom, whether as a matter of general policy or in an attempt to address harassment.
In an accompanying press release, the DFEH noted that its guidance is consistent with an April 2015 federal decision from the Equal Employment Opportunity Commission, as well as a June 2015 “Guide to Restroom Access for Transgender Workers” from the Occupational Safety and Health Administration. While the guidance is not binding authority, it provides employers with needed assistance to address workplace issues in a manner consistent with the demands of the law.