This guest post was authored by Connie C. Almond


DNA.jpgThe Governor recently signed into law AB 887 and SB 559, which prohibit harassment and/or discrimination based on gender identity and expression, and genetic information, respectively. 

Individuals who are transgender identify themselves with a gender that is different from their “assigned” sex.  The term transgender also applies to individuals who dress or behave in ways socially associated with the opposite sex. 

The California Fair Employment and Housing Act (FEHA) prohibits discrimination and harassment based on various specified protected classifications, including sex and gender. Courts have interpreted these terms broadly to include other non-enumerated personal characteristics.  Over the last several years, many California courts have interpreted FEHA to protect transgender individuals.  However, although 70% of transgender Californians have experienced workplace discrimination or harassment, many are unaware that they are protected.  Similarly, many employers are unaware that transgender discrimination is unlawful.

Consequently, AB 887 amends FEHA to specifically include “gender identity” and “gender expression” as part of the term “sex.”  Gender identity refers to a person’s deeply felt internal sense of being male or female.  And gender expression refers to one’s behavior, mannerisms, appearance and other characteristics that are perceived to be masculine or feminine.  AB 887 clarifies that FEHA prohibits, for example, the harassment of a male employee who wears make-up, wears skirts, or behaves effeminately. 

California law has not previously addressed discrimination based on genetic information.  In the mid and late-1900s, employers sometimes used genetic screening to disqualify applicants from employment.  Because some genetic traits are most prevalent in particular groups, genetic screening stigmatized or discriminated against specific ethnic or racial groups.  In 2008, Congress passed the Genetic Information and Nondiscrimination Act (GINA) which prohibits employment discrimination based on genetic information. 

SB 559 adds this same protection to FEHA and other California laws.  Employers are now prohibited from discriminating against a job applicant or employee based on the individual’s genetic tests, genetic tests of the individual’s family members, or the manifestation of a disease or disorder in the individual’s family members.  It has long been unlawful to discriminate against someone who, for example, has a parent with Huntington’s Disease (because the individual is associated with someone with a disability).  Under SB 559, however, an employer may not discriminate against an individual on the basis that the individual is a potential carrier of the Huntington’s gene and may one day exhibit symptoms of the disorder.

Employers should update their harassment policies to reflect these changes and train managers and supervisors regarding these new protected classifications.