The Fair Employment and Housing Act (FEHA) bans discrimination on the basis of “sex, gender, gender identity, [and] gender expression.” Gender expression is defined by law to mean a “person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” The FEHA protects transgender persons, as well as persons undergoing gender transition, from discrimination and retaliation.
The DFEH FAQ identifies two kinds of gender transition: (1) Social Transition – where an individual “socially align[s]”s their gender with their “internal sense of self,” for example by an individual changing their name, pronoun, or bathroom facility usage, and (2) Physical Transition – where an individual undergoes medical treatments “to physically align their body with internal sense of self,” for example by hormone therapies or surgical procedures. As stated in the DFEH FAQ: “A transgender person does not need to complete any particular step in a gender transition to be protected by the law. An employer may not condition its treatment or accommodation of a transitioning employee on completion of a particular step in the transition.”
The DFEH FAQ also provides the following specific instructions and advisements to employers:
- Interviewers should not ask questions designed to detect a job applicant’s sexual orientation or gender identity.
- Employers should not ask questions about a person’s body or whether they plan to have surgery (this information is generally protected by law as confidential).
- A transgender person must be allowed to dress in the same manner as a non-transgender person of the same sex/gender. A transgender person’s compliance with a dress code cannot be judged more harshly than a non-transgender person.
- All employees have a right to safe and appropriate restroom and locker room facilities. This includes the right to use a restroom or locker room that corresponds to the employee’s gender identity, regardless of the employee’s assigned sex at birth.
- Where possible, an employer should provide an easily accessible unisex single stall bathroom for use by any employee who desires increased privacy, regardless of the underlying reason. This type of restroom can be used by employees who do not wish to share a restroom with a transgender coworker.
- Use of a unisex single stall should always be a matter of choice. No employee should be forced to use one either as a matter of policy or due to continuing harassment in a gender-appropriate facility.
According to a DFEH press release, the guidance was issued following a DFEH-initiated lawsuit involving a transgender individual who had sought employment at the American Pacific Corporation (AMPAC) in Sacramento. (See Department of Fair Employment and Housing v. AMPAC (March 2014)) AMPAC conditioned its employment offer on the applicant using shower and restroom facilities inconsistent with the individual’s gender identity and expression, until the applicant underwent physical transition.
Although AMPAC moved to dismiss the case early in the litigation, the Court denied AMPAC’s motion in a strongly-worded order, which stated, in part:
AMPAC’s “hypothetical assertions of emotional discomfort about [non-transgender individuals] sharing facilities with transgender individuals are no different than similar claims of discomfort [underlying] decades of racial segregation in housing, education, and access to public facilities like restrooms, locker rooms, swimming pools, eating facilities, and drinking fountains.”
The case settled shortly after AMPAC’s motion to dismiss was denied; part of the settlement included AMPAC’s agreement to adopt new policies that allow employees access to the facilities that correspond with their gender identity.
The DFEH is not alone in issuing guidance to employers regarding transgender employees in the workplace. Numerous federal agencies have already provided guidance on issues pertaining to transgender workers. Examples include the Equal Employment Opportunity Commission’s brochure entitled “Preventing Employment Discrimination Against LGBT Workers,” the Department of Labor’s “Best Practices: A Guide to Restroom Access for Transgender Workers”, and a Department of Justice legal memorandum entitled “Treatment of Transgender Employment Discrimination Claims.”
Given the newly-issued guidance from the DFEH and other legal advances in this area, employers must be prepared to address issues presented by employee transitions and/or transgender employees in the ever-evolving workplace. Legal counsel can help formulate workplace policies and bring an employer into compliance in this area.