DFEH Issues Guidance for California Employers on Transgender Rights in the Workplace
Transgender rights in the workplace are an important and expanding area of law. In California, the Fair Employment and Housing Act (“FEHA”) prohibits employers from discriminating against transgender workers. Specifically, the FEHA prohibits discrimination based on sex, gender, gender identity, and gender expression. Gender expression is a “person’s gender-related appearance and behavior whether or not stereotypically associated with [their] assigned sex at birth.”
Consistent with the protections afforded by the FEHA, the California Civil Rights Department (“CRD”) has issued a brochure for employers regarding transgender rights in the workplace. The CRD’s brochure offers clear advice regarding improper questions in the workplace, enforcement of dress and grooming policies, and accessibility to bathrooms, showers, and locker rooms. Here are the takeaways:
Improper Questions
First, the CRD explains that employers should not ask questions to detect a person’s sexual orientation or gender identity. This includes questions regarding marital status, spouse’s name, or relation of household members to one another. Furthermore, employers should also not ask questions about a person’s body or whether the individual plans to have surgery.
Enforcement of Dress Code and Grooming Standards
The CRD’s brochure on transgender rights in the workplace clarifies that employers may not deny an employee the right to dress in a manner suitable for that employee’s gender identity. Also, while the FEHA explicitly allows an employer to enforce workplace appearance, grooming, and dress standards, employers must implement their policies in a non-discriminatory manner. This means, for example, that a transgender woman must be allowed to dress in the same manner as a non-transgender woman.
Restrooms, Showers, and Locker Room Accessibility
Employers must allow transgender employees access to restrooms, showers, locker rooms, and other facilities that correspond with their gender identity. And, when possible, the CRD suggests that employers provide an easily accessible unisex single-stall bathroom to provide greater privacy.
For more information on transgender rights in the workplace, you can find the CRD policies and brochures here. Please also visit my practice areas page on Sex Discrimination.
