• Transgender Employee & Job Applicant Rights
  • May 2, 2016 | Authors: Katherine A. Hren; Richard S. Rosenberg
  • Law Firm: Ballard Rosenberg Golper & Savitt LLP - Encino Office
  • A couple of weeks ago, the state's job bias agency (the California Department of Fair Employment and Housing or "DFEH") published a guidance titled "Transgender Rights In the Workplace" to educate the public about the rights of transgender employees and job applicants to be protected against illegal job discrimination. The Guidance covers three main areas: (1) questions to stay away from during job interviews; (2) non-discriminatory dress codes; and (3) appropriate restroom, shower and locker room policies. In this issue of our Compliance Matters newsletter, we discuss steps employers may take to comply with the Guidance and avoid legal claims in the future.

    Background. Since 2012, it has been unlawful for California employers to discriminate against employees on the basis of their gender identity or gender expression. Gender identity is defined as one's personal conception of one's gender. Gender expression is defined as a person's chosen gender related appearance and behavior, whether or not the expression is stereotypically associated with the person's assigned sex at birth. When a person's gender identity does not match his or her biological sex (i.e., the sex that he or she was assigned at birth), that person may refer to themselves as transgender. Unlike gender expression (referring to the external manifestation of gender expressed through one's name, pronouns, clothing, haircut, voice, or body characteristics), gender identity is not visible to others. Typically, transgender persons seek to make their gender expression align with their gender identity, rather than their biological sex.

    Like in any other claim of a hostile environment and retaliation, words matter when dealing with issues of gender identity and expression in the workplace. If you are not already familiar with the lexicon associated with transgender matters, we recommend that you educate yourself regarding which terms are considered appropriate and which terms are likely to be deemed under-informed, and perhaps even offensive. GLAAD Media has recently published a Reference Guide on Transgender Issues that offers a glossary for the different terms used to describe issues of gender identity and expression. You can also reference the IAmTransgender.com article entitled "Talk the Talk: Glossary and Definitions."

    What Not to Ask During Job Interviews

    The Guidance advises that in job interviews, an employer should not ask any questions which are designed to detect a person's gender identity or sexual orientation. Examples of prohibited questions include:
    • the individual's marital status,
    • the name of the individual's spouse,
    • the relation of household members to one another,
    • questions about a person's body,
    • whether the individual plans to undergo (gender reassignment) surgery
    Dress Code
    Employers who maintain a dress code need to enforce it in a non-discriminatory manner. Per the Guidance, this means that transgender persons must be allowed to dress in the same manner as other persons of the gender with whom they identify. Further, the transgender individual's compliance with a dress code may not be "judged more harshly" by the employer.

    Bathrooms, Showers and Locker Rooms
    The new Guidance state's the agency's opinion that all employees have the right to use a restroom or locker room that corresponds to the employee's gender identity, regardless of the employee's biological sex or gender expression. Where possible, the Guidance recommends that an employer should provide an easily accessible unisex single stall restroom for voluntary use by any employee for any reason. DFEH further states that this private restroom should be available to use by any employee who wants increased privacy, regardless of the underlying reason. DFEH suggests that a restroom of this type should be available to be used by an employee who does not want to share a restroom with a transgender co-worker. However, the Guidance also cautions that even if the employer provides a unisex restroom, the use of that restroom should be a matter of choice and that no employee should be forced to use it as a matter of policy or due to continuing harassment in a gender appropriate facility.

    Significantly, the DFEH developed the Guidance in response to a lawsuit involving a transgender job applicant who was offered employment on the condition that the applicant agree to use shower, locker room and restroom facilities that corresponded to the applicant's biological sex until the applicant underwent sex reassignment surgery. As part of a settlement, the employer agreed to adopt new policies to allow employees access to facilities that correspond to their gender identity. DFEH considered the employer's restroom demand to be discriminatory because sex reassignment surgery is not a necessary step to a person's complete gender transition. Along those same lines, the Guidance emphasizes that the steps to complete a gender transition vary from person to person and may emphasize social transitions, such as telling one's friends or using a different name and pronouns, rather than physical transitions. In fact, a great many transgendered individuals never elect to undergo gender reassignment surgery, whether due to financial considerations or other personal reasons. Employers should thus avoid overemphasizing the role of surgery in the gender transition process and stay away from terms such as "sex change surgery" that can be perceived as derogatory.

    What Should You Do?
    In light of this Guidance, employers should consider doing some or all of the following: (1) make sure that those tasked with interviewing job applicants are aware of questions to be avoided during the interview process and become familiar with the proper terminology if the subject of the applicant's gender identity should arise; (2) review dress code policies to make sure that they take transgender rights into account and that the policies are enforced evenhandedly; (3) allow employees to dress in accordance with their gender identity/expression; (4) review any bathroom, shower, and locker room policies, and ensure managers are properly complying with the anti-discrimination requirements; (5) assess whether it would be possible to provide an easily accessible unisex single stall restroom in the workplace to get ahead of issues that may arise in the future; and (6) consider a training program for managers and perhaps the entire workforce so that managers and co-workers of transgender employees do not unwittingly say or do things that may be deemed hostile or offensive.
    While the Guidance does not constitute California law, it provides insight into the kinds of policies and practices the DFEH considers necessary to protect transgender applicants and employees from unlawful employment discrimination or retaliation on account of their gender identity or expression.