California Department of Fair Employment and Housing issues Guidance on Transgender Issues in the Workplace

On February 17, 2016, the Department of Fair Employment and Housing (“DFEH”) issued first-of-its-kind guidance on transgender rights in the workplace.

The California Fair Employment and Housing Act (“FEHA”) prohibits unfair employment practices against an individual based on race, religion, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.  (Gov. Code §12940).  The FEHA extends protections to transgender individuals, defining gender expression as a “person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth.”  (Gov. Code §12926(r)(2)).  Despite the amendment to protect gender identity and gender expression in 2012, no guidance has been issued as to what protections may entail.

The guidance indicates 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 although an individual has not completed a particular step in transitioning genders, the individual is still protected under the FEHA.

The DFEH guidance reminds employer that they cannot ask applicants discriminatory questions during an interview, including questions that might reveal an applicant’s sexual orientation, gender identity, or marital status.  Additionally, the DFEH suggests that questions regarding an applicant’s body or potential surgery may implicate the Health Insurance Portability and Accountability Act (“HIPAA”).

The guidance provides that transgender individuals also have the same right to safe and appropriate restroom and locker facilities.  A transgender employee should be able to use a restroom or locker room that corresponds to the employee’s gender identity. Employers may provide unisex single occupant bathrooms; however, employers should not require a transgender employee to use a unisex single occupant bathroom in lieu of a multi-occupant gender specific bathroom. Such restrooms may also be used by an employee who does not want to share a restroom with a transgender co-worker, the DFEH suggests.

While the DFEH guidance is not binding authority, the guidance may be helpful to employers in addressing workplace issues in this rapidly developing area of law.

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