Transgender at Work: Bathrooms & Beyond!
June 23, 2017
by
Susan S. Waag

Susan S. Waag

New Rules: July 1, 2017:

Effective July 1, 2017, California employers will need to comply with a new set of State regulations governing the hiring and employment of transgender individuals, pursuant to the Fair Employment & Housing Act (“FEHA”). The new rules expand existing definitions of gender expression, gender identity and transgender to include and protect “transitioning” employees and applicants, as well as those who are perceived to be transitioning. They address both employment-related rights as well as equal access to facilities.

What is Transgender?

The term “transgender” is independent of sexual orientation and describes individuals whose gender identity (the sense of gender that every person feels inside) and/or gender expression (their behavior, clothing, haircut, voice, and body characteristics) is different from the sex assigned to them at birth. At some point in their lives, many transgender people decide they must live their lives as the gender they have always known themselves to be, and often transition to living as that gender.

“Transitioning” does not necessarily include hormone therapy, gender reassignment surgery or other medical procedures. It is the process by which a person begins living as the gender with which they identify. This may include changes in name and pronoun, clothing, grooming and use of facilities (bathrooms, locker rooms, etc.). For example: Your employee, John Doe, may start appearing at work in feminine clothing, ask to be called “Monica” and referred to as “she,” and will be using the women’s restroom from now on. Monica is now transitioning to living as a woman.

Legal Protections in Employment:

The FEHA makes it unlawful for employers to discriminate or harass any person in connection with their employment because of their membership in any protected class, including gender identity, gender expression and transgender status. This has long included a provision that permits employers to impose reasonable standards for employee attire and appearance, so long as “an employer shall allow an employee to appear or dress consistently with the employee’s gender identity or gender expression.”

The new regulations elaborate on transgender issues:

  • Regarding “Recording of Gender and Name,” the regulations state:
    1. It is unlawful to require an applicant or employee to state whether the individual is transgender.
    2. If a job application form requires an individual to identify as male or female, designation by the applicant of a gender that is inconsistent with the applicant’s assigned sex at birth or presumed gender shall not be considered fraudulent or a misrepresentation for the purpose of adverse action based on the applicant’s designation. (Note that job applications should not request this information except in certain very limited circumstances!)
    3. If an employee requests to be identified with a preferred gender, name and/or pronoun, an employer or other covered entity who fails to abide by the employee’s stated preference may be liable under the FEHA, except as noted in (4) below.
    4. An employer may use an employee’s gender or legal name as indicated in a government-issued identification document only if it is necessary to meet a legally-mandated obligation.
  • The regulations also contain the following prohibitions:
    1. It is unlawful for employers and other covered entities to inquire or require documentation or proof of an individual’s sex, gender, gender identity or gender expression as a condition of employment, unless the employer or other covered entity meets its burden of proving there is a bona fide occupational qualification for the inquiry or requirement, or the employee initiates communication with the employer regarding any requested adjustment to the employee’s working conditions.
    2. It is unlawful to deny employment to an individual based wholly or in part on the individual’s gender identity or gender expression.
    3. Nothing in these regulations shall prevent an applicant or employee from asserting rights under other provisions of the Act, including leave under the California Family Rights Act and rights afforded to individuals with mental or physical disabilities.
    4. It is unlawful to discriminate against an individual who is transitioning or has transitioned.

Bathrooms:

Effective March 1, 2017, California regulations required businesses to make all “single-user” bathrooms available to all users on a gender-neutral basis. A “single-user” bathroom is defined to include a bathroom with either a single toilet bathroom, or a single toilet plus a urinal.

These rules include a requirement that single-user bathrooms have appropriate signs indicating that they are available to anyone, regardless of gender. Such signs are readily available on line, and typically show both the universal male and female silhouettes. If you include any wording on the signs, the terms must not limit who may use the particular single-use bathroom. Permissible terms include: “Restroom,” “Unisex,” “Gender Neutral”, “All-Gender Restroom”, etc. Each single-user bathroom also must have signage indicating that it is for use by no more than one occupant at a time, with an exception for family or assisted-care use.

Other Facilities:

The new rules, effective July 1, 2017, go far beyond bathrooms. Specifically, all employees have a right to safe and appropriate restrooms, dressing rooms and locker rooms as needed. This includes the right to use such spaces that correspond to the employee’s gender identity, regardless of the employee’s assigned sex at birth. Where possible, an employer should provide an easily-accessible unisex single stall bathroom for use by any employee who desires increased privacy, regardless of the underlying reason. A private restroom of this type can also be used voluntarily by an employee who does not want to share a restroom with a transgender coworker. However, use of a unisex single stall restroom should always be a matter of choice. No employee should be forced to use one either as a matter of policy or due to continuing harassment arising from use of a gender-appropriate facility.

Penalties:

Violations of the FEHA can be very expensive. A plaintiff can be awarded lost wages, emotional distress, punitive damages and attorney’s fees. Even if an employer wins, these cases can be costly to defend.

Prevention:

Carefully-drafted policies along with basic training for supervisors to understand and comply with these new rules will greatly reduce the risk of violating the FEHA. Such practices also help employers avoid the disruption and difficulties that occur when a business is otherwise not equipped to accommodate transgender issues, preferably before those problems arise.

Susan S. Waag is an employment law attorney at LightGabler. Based in San Luis Obispo, Susan provides advice to employers of all sizes on problem prevention and compliance with the myriad of laws impacting California businesses.