This summer new Fair Employment & Housing Council (FEHC) regulations came into effect to protect transgender employees in California. As of January 1, 2017, California businesses were already required to designate single occupancy bathrooms as gender neutral. But FEHC’s new regulations go much further in requiring employers to permit employees to use facilities as may correspond with their “gender identity” or “gender expression.”
The new regulations make clear that transgendered individuals are a protected class in California—as are those who may not conform to gender norms. This means that employers are forbidden from discriminating against individuals based on their gender identity or gender expression, and employers must affirmatively discourage any form of harassment against these individuals.
Employers should consider the following essential rules:
• Employers may not ask job applicants about gender or request documentation of gender.
• Employers must respect an employee’s request to be referred to by a chosen name, or pronoun. (This does not prohibit the employer from referring to the employee’s legal name in legal filings, and in legally required correspondence).
• Employers must also be able to demonstrate a genuine business necessity to enforce workplace policies on physical appearance, grooming or dress standards that may be inconsistent with the employee’s chosen gender identity or expression. Employers are advised to consult legal counsel if their existing policies proscribe gender specific standards.
Other states and jurisdictions may soon adopt similar legislation and or regulation. In fact, some courts are already moving in this direction in interpreting existing federal gender protections as prohibiting employers from allowing discrimination on the basis of the fact that an employee may not conform to gender norms.
In summary, employers should prohibit any sort of harassment in the workplace. For a related topic, check-out our previous post on sexual orientation protection under Title VII and gender-related pay disparities, as well this post on California’s stringent pay equity law.
*This article does not constitute legal advise. If you need specific advise, it is advisable to consult a trust employment law attorney.
