Employers, beware: New regulations expand existing transgender protections under California’s Fair Employment and Housing Act (FEHA). FEHA protects individuals who identify as transgender and provides protections on the basis of both gender identity and gender expression — regardless of the person’s assigned sex at birth. California law also specifically protects an employee’s right to appear or dress consistently with his/her gender identity or gender expression.
The amendments to FEHA became effective July 1, 2017 and specifically address transitioning, dress standard, name preference, identity, and documentation as they relate to the workplace and housing.
In California, it is unlawful for an employer (or landlord) to discriminate against an individual who is transitioning, has transitioned, or is perceived to be transitioning. Transitioning is the process some transgender people undergo to begin living as the gender they identify with. Examples include changes in name, changes in pronoun usage, facility usage, participation in employer-sponsored activities, hormone therapy, surgeries, and other medical procedures.
Under the new law, it is unlawful, except in certain limited situations, for an employer to impose any physical appearance, grooming, or dress standard upon an employee or applicant that is inconsistent with their gender identity or gender expression. The exception is where the employer can establish business necessity. Speak with an experienced business lawyer prior to implementing any such dress code guidelines in your workplace.
Additionally, if an employee requests to be identified with a preferred gender, name, or pronoun, and the employer refuses to respect the employee’s request, the employer will be liable under FEHA. However, the employer is permitted to use an employee’s gender or legal name if it is necessary to meet a legally mandated obligation. Furthermore, it is unlawful for employers to inquire about or require documentation or proof of an individual’s sex, gender, gender identity, or gender expression as a condition of their employment.
Affirmative Defenses for the Employer
Once sex-based discrimination is established by the plaintiff employee, an employer may use certain affirmative defenses (set forth in section 11010), such as the defense of Bona Fide Occupational Qualification (BFOQ). BFOQ can be utilized in numerous contexts and basically allows the employer to assert as a defense that a particular characteristic is necessary in order to perform the job. However, the new regulations will make it difficult for an employer to assert that a “bona fide occupational qualification” requires a particular gender to perform the job.
For more information on expanded protections for gender and identity, particularly as it relates to transgender individuals, and your business, contact experienced employment attorney Drew E. Pomerance today.