On February 17, 2016, the California Department of Fair Employment and Housing (“DFEH”) issued guidelines on transgender employee rights. These guidelines, or “Transgender Rights in the Workplace” 1) address what questions employers can ask transgender employees (during the application process and in the workplace), 2) address how employers can implement dress code and grooming standards, and 3) make suggestions for maintaining employee restrooms, showers, and locker rooms.
Over the past several years, there has been increased attention to transgender employee rights in California and throughout the United States. In response, the DFEH Transgender Guidelines start with with a definition of “transgender”, describe two different kinds of gender transition, and provide a list of frequently asked questions (FAQs) for employers. A summary of DFEH suggestions include the following:
Avoid Inappropriate Questions – While employers can ask employees about their employment history and other non-discriminatory questions, the DFEH recommends that employers avoid questions designed to determine a person's sexual orientation or gender identity, as well as questions about whether a person plans to have sex reassignment procedures or surgery.
Apply Dress Codes Consistently -Dress codes and grooming standards must be enforced in a non-discriminatory manner. For example, a transgender man whose assigned sex at birth was female must be allowed to dress and groom himself in accordance with his gender identity (like the other persons who identify as men in the workplace). Further, the transgender man's compliance with the employer's dress code or grooming standards cannot be subject to additional scrutiny.
Provide Appropriate Restrooms and Locker Rooms For All Employees -All employees, including transgender employees, have the right to use a locker room or restroom that corresponds with their gender identity—regardless of their assigned sex at birth. The DFEH suggests that employers, where possible, should provide unisex single stall bathrooms for any employee who would like increased privacy for any reason, also without regard to gender identity or expression. But use of unisex facilities should always be completely voluntary for all employees.
Remember Protections Apply to All Employees – An individual need not have sex reassignment surgery or complete any particular step in transitioning to be considered transgender. And, more broadly, FEHA's gender identity and gender expression protections apply to all employees—whether or not those employees identify as transgender, or are simply gender non-conforming in the way that they present themselves. The FEHA thus protects both transgender employees and employees whose gender expression may not comport with traditional or stereotypical gender roles.
The DFEH guidelines are consistent with other federal agency and judicial interpretations of the law, including the Equal Employment Opportunity Commission's recent interpretation of Title VII as prohibiting discrimination based on gender identity.
California Employment Lawyers
If you have been asked a discriminatory question, work in a place where the dress code is not enforced uniformly, or have not been permitted to use the restroom of your choice, the experienced lawyers at Kingsley & Kingsley can help. Take the first step to protecting yourself and stopping this hurtful and illegal behavior. Take advantage of a free initial consultation by calling us toll free at (888) 500-8469 or by clicking here to contact us regarding your case.