New California FEHA Regulations Clarify, Expand Protections for Transgender Workers

On July 1 of this year, several new regulations went into effect here in California. One group of new Fair Employment and Housing Act regulations provides importance guidance and obligations for employers when it comes to transgender employees and anti-discrimination protections afforded to them under the law and regulations.

The FEHA already prohibited employers from discriminating against employees based upon their gender identity, but the new regulations expand upon the protections available to transgender employees.

One aspect of protection for transgender employees that the new regulations cover is an area that has generated many headlines in other places:  bathrooms. The new regulations require employers to provide equal access to facilities, which include bathrooms, showers, and locker rooms. Employees must be allowed to use the restroom that corresponds with their gender identity or gender expression, regardless of their sex at birth. An employer may not require any sort of proof of gender (like identity documents or medical records) before allowing an employee to use a particular facility.

Employers should also take note of the issue of single-occupancy facilities. Even if an employer provides a single-occupancy bathroom or shower facility in addition to gender-specific facilities, that employer cannot require transgender employees to use that single-person facility.

Another popularly discussed area that the regulations cover is names and pronouns. Under the regulations taking effect this month, an employer must grant an employee’s request to go by a new name or new set of pronouns (for example, she/her/hers instead of he/him/his). This also includes gender-neutral pronouns, so if an employee states a preference that the employer use they/them/their, the employer should do so.

There is a very narrow exception that is carved out for employers when it comes to names and pronouns. If required to do so in order to comply with a legally mandated obligation, an employer may use the name or gender indicated on a government-issued document.

Another important area for transgender employees is the issue of transitioning. A noteworthy case making news earlier this year involved a Michigan funeral home employee who was transitioning from male to female and sought permission to begin wearing professional women’s attire to work. (Instead of granting the request, the employer fired the employee.) The new FEHA regulations expressly bar discrimination against a transitioning employee and also set out a definition of transitioning. According to the regulations, transitioning is “a process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth [and] may include, but is not limited to, changes in name and pronoun usage, facility usage, participation in employer-sponsored activities (e.g. sports teams, team-building projects, or volunteering), or undergoing hormone therapy, surgeries, or other medical procedures.”

While the concept of treating all employees with fairness, respect, and dignity might seem to be common sense in a general manner, there are still many specific details and nuances when it comes to the FEHA and its prohibitions against discrimination and harassment. If you think you’ve been a victim of discrimination based upon your gender identity or some other protected class, reach out to the Oakland employment attorneys at the Law Offices of Stephen M. Fuerch. Our team is dedicated to helping employees who’ve been harmed by illegal discrimination protect themselves and pursue their rights. For more information regarding how this office can help you, contact us through our website or call our office at (925) 463-2575 to schedule your confidential initial consultation today.

More Blog Posts:

California Diversity Manager Allowed to Resume Pursuing a Claim That His Employer Fired Him for Being ‘Too Gay’, Oakland Personal Injury Attorney Blog, May 15, 2015

Governor Signs New California Law to Expand Definition of Protected Activities under FEHA, Oakland Personal Injury Attorney Blog, May 15, 2015

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