Articles

Employer Alert: Transgender Employee Rights

July 26, 2017

by Ghazaleh Modarresi

In February we alerted you on the California State Legislature passing of AB 1732 here, which requires that, as of March 1, 2017, all single-user toilet facilities in any California business be identified as “all-gender.”  As of July 1, 2017, the Fair Employment and Housing Council (FEHC) regulations have expanded upon laws relating to gender identity and expression under California’s Fair Employment and Housing Act (FEHA).  Employers are now required to provide transgender employees equal access to restrooms and other facilities, such as locker rooms, dressing rooms, and dormitories. The regulations emphasize that an employee has the right to use a restroom or other facility that corresponds to the employee’s gender identity or expression, regardless of the employee’s assigned sex at birth. Under the regulations, employers may make “a reasonable and confidential inquiry of an employee for the sole purpose of ensuring access to comparable, safe, and adequate multi-user facilities.”

The expanded regulations also include the following:

  • Employers must honor an employee’s request to be identified by a preferred gender or name or pronoun, including gender-neutral pronouns;
  • Employers may not impose appearance, grooming or dress standards inconsistent with an individual’s gender identify and gender expression – applicants and employee have the right to appear or dress consistently with their gender identity or gender expression; and
  • Employers may not seek gender or sex-related information from applicants and employees, including proof of an individual’s sex, gender, gender identity or gender expression.

The regulations also include “transitioning” employees and specifically prohibits discrimination against transitioning employees and those perceived to be transitioning.

While the new regulations do require gender-neutral signage on single-occupancy restroom facilities for most employers, on July 25, 2017, the FEHC proposed to adopt emergency regulations to exempt certain industries from being required to use gender-neutral signage on restroom facilities.  The emergency regulations were proposed to address a conflict with certain regulations promulgated by Cal/OSHA regarding a provision that requires a certain number of non-flushing toilet facilities separately marked for men and women in certain industries.  

The full text of the newly adopted regulations is available here and the text of the emergency regulations is available here, and both are available on the Department of Fair Employment and Housing website.

It is important for employers to review workplace policies and employee handbooks to ensure compliance with the new expanded regulations. Employers should also ensure that managers are properly trained on matters of gender identity and expression, given that the expanded regulations may likewise expand liability for harassment.

If you have questions about how this development impacts your business, please contact Ghazaleh Modarresi, Esq., Employment Law Associate, by telephone at (408) 286-5800 or via email at ghazaleh.modarresi@berliner.com