California Proposes Regulations on Transgender Issues

May 13 2016 - Discrimination - HRWatchdog

transgenderToday, California’s Fair Employment and Housing Council proposed amendments to the state Fair Employment and Housing Act (FEHA) to specifically address protections for transgender persons, including restroom-related protections.

FEHA prohibits harassment and discrimination based on protected classes. California state law specifically protects people who identify as transgender, providing 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 draft regulations emphasize that an employee has the right under FEHA to use a restroom or locker room that corresponds to the employee’s gender identity or expression— regardless of the employee’s assigned sex at birth. The proposed regulations cover equal access to restrooms and other similar facilities, including locker rooms, dressing rooms and dormitories.

The draft regulations also include the following proposals:

  • New rules relating to seeking gender- or sex-related information from applicants and employees, including rules prohibiting employers from seeking proof of an individual’s sex, gender, gender identity or expression (except in very limited circumstances).
  • Rules specifying that employers must honor an employee’s request to be identified by a preferred gender, name or pronoun.
  • Expansion of existing gender expression, gender identity and transgender definitions to include “transitioning” employees and specifically prohibiting discrimination against transitioning employees.
  • Revision of FEHA regulations to use gender-neutral language throughout to further the FEHA’s objective to prevent discrimination/harassment regardless of a person’s sex.

Earlier this year, the Department of Fair Employment and Housing issued new guidance for employers on how to comply with the law, but there were not any detailed reguations and the guidance is not binding legal authority.

Comment Period

The Council will hold a public hearing starting at 10 a.m. on June 27, 2016, at the following location:

Ronald Regan State Building, Auditorium (First Floor)

300 South Spring Street

Los Angeles, CA 90013

Written comments will be accepted until 5:00 p.m. on June 27, 2016.

Written comments can be submitted by e-mail to FEHCouncil@dfeh.ca.gov or mailed to:

Fair Employment and Housing Council

c/o Brian Sperber, Legislative & Regulatory Counsel

Department of Fair Employment and Housing

320 West 4th Street, 10th Floor Los Angeles, CA 90013

For more information on the proposed regulations, visit the Fair Employment and Housing Council’s website.

Federal Guidance

In addition to these proposed state regulations, the federal Equal Employment Opportunity Commission (EEOC) recently issued a Fact Sheet regarding bathroom access rights for transgender employees under federal anti-discrimination laws. This has become an area of litigation between the federal Department of Justice and the State of North Carolina over the legality of North Carolina’s recent law restricting bathroom access.

The EEOC has taken on several recent claims that it believes involve transgender-related discrimination issues.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

CalChamber members can read more about Restroom Issues in the HR Library. Not a member? See how CalChamber can help you.

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