• California's New Gender Regulations
  • December 5, 2017 | Authors: Richard S. Rosenberg; Janet Sylvia Soultanian
  • Law Firm: Ballard Rosenberg Golper & Savitt LLP - Encino Office
  • New regulations issued by the California Department Of Fair Employment and Housing add significant new obligations and restrictions on California employers regarding the hiring and continued employment of transgender individuals.

    The new regulations, which went into effect July 1, 2017, make significant changes and additions to how the agency will be enforcing California's job bias laws with respect to transgendered individuals. These changes apply to any employer with five or more full-time or part-time employees.

    The new regulations expand the definition of "sex" discrimination to now include discrimination on the basis of one's gender, "gender identity", "gender expression", or the perception by a third party of any of the aforementioned.

    The new regulations also expand the job bias laws to outlaw discrimination , harassment and retaliation based on a person's "gender identity" (how one sees him/herself), "gender expression" (how one chooses to present him/herself to the world), or the perception of such appearance or behavior.

    They also provide a definition for "transitioning" to explain the process of gender reassignment - "a process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth." The new regulations go on to say that it's unlawful to discriminate against an individual who: (i) is transitioning; (ii) has transitioned or (iii) is perceived to be transitioning.

    Additionally, below is a summary of key policies and practices that covered employers are required to implement regarding the new expanded definition of gender and gender discrimination:

    Name and identity: An employer must abide by an employee's request to be identified by a particular gender, name and/or pronoun, unless the employer must meet a legally-mandated obligation.

    Job applications: Any inquiries into an applicant's or employee's sex can be requested solely on a voluntary basis, and an employer cannot discriminate based on an applicant's failure to designate male or female on an application. Thus, prudent employers should remove questions about gender, or at least, make the inquiry voluntary.

    Job assignments: Employers must provide equal opportunities to all employees for upward mobility, promotion and entrance to all jobs for which they are qualified. To that end, employers must allow employees to perform jobs or duties that correspond either to the employee's gender identity or gender expression, regardless of the employee's assigned sex at birth. Employers cannot designate a job for one sex only, or require separate lines of progression or seniority. However, employers can implement mobility programs to accelerate the promotion of so-called "underrepresented groups."

    Sex stereotyping: Job duties may not be assigned by sex stereotype. Support services and facilities, such as clerical assistance and office space, shall be provided to employees without regard to the employee's gender.

    Inquiries: Inquiries that directly or indirectly identify an individual based on sex, including gender, gender identity, or gender expression, are unlawful. After an individual is hired, an employer may record the employee's sex on employment documents for non-discriminatory personnel purposes. For recordkeeping purposes only, every employer shall maintain data regarding the sex of each applicant and for the job for which s/he applied. To obtain this information, an employer may only request gender, gender identity or gender expression information on a voluntary basis.

    Pay and benefits: Employers cannot condition pay or fringe benefits upon an employee's gender, gender identity or gender expression; nor can the availability of fringe benefits be conditioned upon whether an employee is a head of household, principal wage earner, secondary wage earner or other similar status. An employer also cannot require different optional or compulsory retirement ages based upon sex.

    Facilities: Employers must provide equal access to comparable, safe and adequate facilities "without regard to the sex of the employee." Employers now must permit employees to use facilities that correspond to the employee's stated gender identity or expression, regardless of the employee's assigned sex at birth.

    Employers with single-occupancy facilities are now obligated to use gender-neutral signage for those facilities, such as "Restroom, "Unisex," "Gender Neutral," "All Gender Restroom," and "feasible alternatives such as locking toilet stalls, staggered schedules for showering, shower curtains, or other feasible methods of ensuring privacy." Remember that a new law, which went into effect March 1, 2017, requires all single-user toilet facilities in any business establishment, place of public accommodation or government agency to be identified as "all-gender" toilet facilities. See our Bulletin regarding this new law available here. An employer cannot require an employee to use a particular facility.

    Employees are not required to undergo (or provide proof of) any medical treatment or procedure, or provide any identity document, to be allowed to use facilities designated for a particular gender. However, an employer is allowed to make a reasonable and confidential inquiry of an employee for the sole purpose of ensuring access to comparable, safe, and adequate multi-user facilities. On a related note, the regulations do not preclude an employer and employee from communicating about the employee's sex, gender, gender identity, or gender expression when the employee initiates communication with the employer regarding the employee's working conditions.

    Dress code: An employer cannot impose any physical appearance, grooming or dress standard based on gender identity or gender expression. This is a significant change in the existing law, as physical appearance, grooming or dress standards used to be lawful so long as they did not discriminate based on sex and did not significantly burden the individual in his or her employment.

    Training: The company's mandatory sex harassment training must now include discussion of these new rights and the prohibition of discrimination based upon gender, gender expression and gender identity.

    Danger to health, safety or reproductive functions: If working conditions pose a greater danger to the health, safety, or reproductive functions of applicants or employees of one sex than to individuals of another sex working under the same conditions, the employer or other covered entity shall make reasonable accommodation to: 1) alter the working conditions to eliminate the greater danger, unless it is an undue hardship on the employer, or 2) upon request from the employee of the more endangered sex, transfer the employee to a less hazardous or strenuous position for the duration of the greater danger, unless it is an undue hardship on the employer. The existence of a greater risk for employees of one sex than another sex is not a defense.

    Potential defenses to discrimination claims that won't work: The new regulations provide that the following situations will NOT justify the refusal to comply fully with these new regualions:

    • a correlation between individuals of one sex and physical agility or strength,

    • a correlation between individuals of one sex and height,

    • customer preference for employees of one sex

    • the necessity to provide separate facilities for one sex,

    • the fact that an individual is transgender or gender non-conforming, or that the individual's sex assigned at birth is different from the sex required for the job; or the fact that members of one sex have traditionally been hired to perform the particular type of job.

    However, the regulations do provide that personal privacy considerations may justify non-compliance with the new regulations, but only where all three of the following conditions are met:

    • the job requires an employee to observe other individuals in a state of nudity or to conduct body searches,

    • it would be offensive to prevailing social standards to have an individual of a different sex present, and

    • it is detrimental to the mental or physical welfare of individuals being observed or searched to have an individual of a different sex present.

    The regulations also provide that it is no defense to a complaint of harassment based on sex that the alleged harassing conduct was not motivated by sexual desire. In other words, teasing, jokes or comments about an individual's gender, gender expression or gender identity could land you or the company in court.

    What This Means For Employers: Employers wishing to avoid claims of discrimination should thoroughly review their job applications, policies and practices that may implicate sex discrimination, gender identity and gender expression, and train all managers and employees to ensure compliance with these new regulations. Management Training programs must also be expanded to include discussion of this important topic.