California FEHA Updates – Transgender Discrimination And National Origin Discrimination

Effective July 1, 2017 – New California Regulations Expand Protections For Transgender Workers 

The California Office of Administrative Law approved new regulations expanding protections for transgender workers under California's Fair Employment and Housing Act (FEHA). Among other protected classifications, the FEHA prohibits workplace discrimination and harassment on the basis of gender identity or gender expression. Primary takeaways of the new regulations include:

  • It is unlawful to discriminate against an individual “who is transitioning or has transitioned or is perceived to be transitioning.” Transitioning is defined as “a process some transgender people go through to begin living as the gender with which they identify” including changes in name and pronoun usage, facility usage, participation in employer-sponsored activities, or undergoing hormone therapy, surgeries or other medical procedures.
  • Employers are required to abide by an employee's request to be identified with a preferred gender, name, or pronoun. An employer is permitted, however, to use an employee's gender or legal name as indicated in a government-issued identification document, even if inconsistent with the employee's preferred gender or name, as necessary to meet a legally-mandated obligation.
  • It is unlawful for an employer to impose upon an applicant or employee any physical appearance, grooming or dress standard that is “inconsistent with an individual's gender identity or gender expression,” unless the employer can establish a business necessity defense.
  • Employers must now permit an employee to use bathrooms and other facilities that correspond to the employee's “gender identity or gender expression, regardless of the employee's assigned sex at birth.” An employer may not require an employee to use a particular facility. Also, employers are required to provide “feasible alternatives” to protect transgender employees' privacy such as locking toilet stalls, staggered schedules for showering and shower curtains.
  • In addition to multiple-user facilities, the regulations address the required signage for single-user toilet facilities, which must be identified as all-gender toilet facilities under a new law (Assembly Bill 1732) that was effective March 1, 2017. The regulations provide that employers must use gender-neutral signage for these facilities such as “Restroom,” “Unisex,” “Gender Neutral,” or “All Gender Restroom.”

FEHC Hears Public Comment On New National Origin Discrimination Regulations

On July 17, 2017, the California Fair Employment and Housing Council (FEHC) heard public comments on its proposed regulations covering national origin discrimination under the FEHA. Per the FEHC's notice of the meeting, “The overall objective of the proposed amendments is to describe how the FEHA applies to the protected class of national origin in the employment context, primarily by centralizing and codifying existing law, clarifying terms, and making technical corrections.”

Public comments at the hearing revolved around (1) language restrictions (“English only” rules), (2) employer requirements for English language proficiency, (3) discovery as to an individual's immigration status during the liability phase of any lawsuit or other proceeding to enforce the FEHA's prohibition of national origin discrimination, and (4) expanding the definition of what constitutes harassment on the basis of national origin. The only public comments received at the hearing were from pro-employee individuals and groups. The comment period for the proposed regulations closed at 5 p.m. on July 17th.

Questions about the California Fair Employment and Housing Act?

An experienced California employment lawyer can quickly answer your questions about FEHA. To discuss new regulations, or any of California's discrimination laws, feel free to contact leading California employment lawyers at Kingsley & Kingsley. Call toll-free at (888) 500-8469 or click here to contact us via email.

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