DFEH of California issues guidance on transgender rights

The California Department of Fair Employment and Housing (DFEH) recently issued new guidance for employers regarding transgender rights in the workplace. In order to be protected by the law, a transgender person does not need to complete any particular step in a gender transition (social or medical). The new guidance covers:

• Interviews: As an employer, you may ask about an applicant’s employment history and personal references, in addition to other nondiscriminatory questions. You should not ask questions to try to determine sexual orientation or gender identity. You should also avoid questions about a person’s body or whether they plan to have surgery.
• Dress codes: In California, workers have the right to dress in a manner suitable for their gender identity. If you have a dress code, you must enforce it in a non-discriminatory manner.
• Bathrooms: Employees have the right to use a restroom or locker room that corresponds to their gender identity. While it is not required for employers to have gender neutral bathrooms, having an easily accessible unisex single stall bathroom is a good solution for any employee who wants better privacy, regardless of the reason. However, the DFEH says that employers shouldn’t force anyone to use a single stall bathroom.

Tips: Gender identity can be subjective and isn’t necessarily static. Some individuals may not feel they belong to either gender, while others may see themselves as expressing both genders. Employers should treat transgender employees the same as other employees. Policies should be put in place to make sure that gender identity discrimination does not occur. The DFEH guidance gives a clear explanation on how an employer should treat a transgender employee. If you have specific questions on how to implement this guidance in your workplace, feel free to contact your Vigilant employment attorney.