07/01/2017

New regulations address protections related to gender identity

The California Office of Administrative Law just approved new regulations which expand existing protections under California’s Fair Employment and Housing Act (FEHA).

Specifically the regulations address protections related to gender identity, and are effective July 1, 2017:

• Gender expression is defined as a person’s gender-related appearance or behavior, or the perception of such appearance or behavior .
• Gender identity is defined as a person’s internal understanding of their gender, or the perception of the person’s gender .
• The list of genders has been expanded: female, male, transgender, ‘a combination of male and female’, and ‘neither male nor female’ .
• Employers are prohibited from discriminating against individuals in transition, perceived to be in transition, or who have transitioned .
• Employers are prohibited from inquiring about, or requiring proof of an individual’s sex, gender, gender identity, or gender expression as a condition of employment.  Employers may make such inquiry, provided they can show a bona fide occupational qualification (BFOQ).  Employers may also communicate about an employee’s sex, gender, gender identity, or gender expression when the employee initiates such communication regarding working conditions.
• Employers must honor an employee’s request to be identified by a preferred gender, pronoun, or name – including gender-neutral pronouns.  Employers may use an employee’s gender or name as indicated on a government-issued form of identification, only when it is necessary to meet a legal obligation.
• Employers cannot set dress policies, codes, standards, or other restrictions on physical appearance, grooming or dress that are inconsistent with an applicant’s or employee’s gender identity or expression, unless they can establish a business necessity for such standard.
• Employers must allow employees to use facilities that correspond to their gender identity or expression, inclusive of restrooms and locker rooms.  Additionally, if the employer has a single occupancy facility (such as one restroom) it must be labeled with gender-neutral signage, verbiage or symbols, such as “Restroom”, “Unisex,” or “Gender Neutral”.  Employers must also take reasonable privacy protection measures as needed – such as stall locks, showering schedules, and shower curtains.  And finally, employers may not require any type of gender proof before allowing use of such facilities.