California continues to forge a trail for gender identity protections in the United States. On July 1, 2017, the Fair Employment and Housing Council enacted new regulations addressing transgender issues that broaden the scope of existing protections under California's Fair Employment and Housing Act (FEHA). The law adds requirements that address, among other things, recruiting practices and the use of gender-neutral language.

Below are key points for employers to keep in mind to ensure they are complying with the new regulations:

  • Do Understand the Terminology: It is vital that employers are familiar with the language surrounding transgender identities. Under the FEHA, employers may not discriminate on the basis of gender identity or gender expression, or because an individual is transgender, transitioning, or has transitioned.

The regulations define transgender as "a general term that refers to a person whose gender identity differs from the person’s sex assigned at birth. A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth. A transgender person may or may not identify as 'transsexual.'"

The regulations define transitioning as "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. This process may include, but is not limited to, changes in name and pronoun usage, facility usage, participation in employer-sponsored activities (e.g. sports teams, team-building projects, or volunteering), or undergoing hormone therapy, surgeries, or other medical procedures."

  • Do Abide by an Employee's Preferred Name and Identity: Employers must ensure that they refer to employees by their preferred name, gender, and pronoun.

  • Do Provide Equal Access to Restroom Facilities: Employers now must permit an employee to use bathrooms and other facilities that correspond to the employee's "gender identity or gender expression, regardless of the employee’s assigned sex at birth." Employers may not require employees to provide proof of any medical treatment or procedure, or provide any identity document to use facilities designated by a particular gender. These regulations bolster existing requirements that went into effect on March 1, 2017, which state that employers with single-occupancy facilities must use gender-neutral signage.

  • Don't Impose Improper Dress Standards: Employers are prohibited from requiring any physical appearance, grooming, or dress standard that is "inconsistent with an individual’s gender identity or gender expression" unless the employer can establish a business-necessity defense.

  • Don't Deny Employment: Employers must not deny employment based solely on an individual's sex, gender, gender identity, or expression.

Although the new regulations create specific obligations and prohibitions for employers, the overarching key to compliance is creating a respectful, safe, and fair workplace for all employees. Employers should thoroughly review and update their policies to comply with the most up-to-date definitions and regulatory requirements, and ensure that supervisors and human resources personnel are trained on these issues.

Ballard Spahr's Labor and Employment Group routinely assists employers in reviewing and updating policies and practices in light of applicable laws. The firm's Diversity & Inclusion team advises clients on the design and implementation of D&I programs, offering a perspective that blends D&I consulting and development with a sensitivity to important legal issues.

Copyright © 2017 by Ballard Spahr LLP.
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