Harassment and Transgender Regulations: Workplace Impact

By Joseph Ortiz

Over the past couple of years, California has seen real changes to the regulations affecting employer obligations as to harassment, investigation policies, and transgender rights. Two of the most impactful are (1) the April 2016 regulations setting forth additional employer harassment and investigation policy requirements and (2) the July 2017 regulations setting forth new regulations regarding transgender identity and expression.
 
The Harassment Policy Regulations: On April 1, 2016, the California Fair Employment and Housing Council (FEHC) enacted new regulations requiring employers (read: your clients) to develop and distribute anti-harassment and discrimination policies with specific required elements. The regulations require employers to create a formal internal complaint process to address harassment and discrimination concerns. Employer anti-harassment policies must:

• Be in writing;
• List all categories protected under the Fair Employment and Housing Act (FEHA);
• Expressly indicate that coworkers, third parties, supervisors, and managers are prohibited from engaging in discrimination, harassment, or retaliatory conduct;
• Provide a process to ensure complaints are kept as confidential as possible, handled in a timely manner, investigated by qualified unbiased personnel, and resolved in a timely fashion;
• Establish a complaint mechanism that does not require an employee to complain directly to an immediate supervisor;
• Instruct supervisors to report any complaints of misconduct for internal resolution;
• State that confidentiality will be kept by the employer to the extent possible;
• Indicate that, if misconduct is found, appropriate measures will be taken; and
• Make clear that retaliation for filing a complaint or participating in the investigation is prohibited. 

Notably, the Department of Fair Employment and Housing (DFEH) also created additional resources for employers, including a Workplace Harassment Guide, Sexual Harassment Posters, and a Sexual Harassment Brochure. These resources are available here.
 
The Transgender Regulations: As of July 1, 2017, new regulations clean up language to eliminate the binary reference to male or female and include protections for transgender, gender fluid, and transitioning employees. “Transitioning” is expressly defined in the new regulations as a process some transgender people go through to begin living more fully and consistently with their gender identity. The process may include changes to name, pronoun usage, facility usage, hormone therapy, and surgeries, among other things. Here are some of the important takeaways from the regulations:

• Protections for Those Transitioning: Employment-related protections specifically prohibit discrimination against employees who are transgender, gender fluid, or “transitioning.”
• Gender-Related Job Duties: Employers must permit employees to perform jobs or duties that correspond to the employee’s gender identity, regardless of the employee’s birth gender.
• Use of Facilities: Employers must permit employees to use facilities that correspond to the employee’s gender identity and must designate single-user toilet facilities as available for all genders.
• No Test or ID to Establish Gender: Employers may not subject employees to exam or require them to provide identity documentation in order to use facilities related to their gender identity.
• Dress Standards: Employers may not impose any standards on appearance, grooming, or dress that are inconsistent with an employee’s gender identity.
• Demanding Disclosure of Gender: Employers may not demand disclosure or require proof of an applicant’s gender during the application for employment process. Gender information may only be requested on a voluntary basis.
• Preferred Gender, Name & Pronoun: Employers must comply with an employee’s request to be identified with a preferred gender, name, and pronoun. 

The Transgender Identity & Expression regulations are available here.
 
Your clients need to understand that they may no longer demand disclosure or require proof of an applicant’s gender during the application process. For many employers, this will mean that application forms will need to be updated and hiring personnel will need to be trained on the new regulations. The only exceptions to this prohibition are where gender is disclosed on a voluntary basis for recordkeeping or where the employer can show a legitimate business purpose for the need for disclosure.
 
Finally, employers must refer to employees by their chosen name, gender, and pronoun, regardless of any other gender noted on identification provided by the employee. Note that some gender fluid individuals prefer the use of plural pronouns, such as “they,” in order to avoid the assigning of gender in usage. This may be confusing for some employers who are reluctant to use a plural pronoun to refer to a single individual.

This article originally appeared in the May 2018 edition of Riverside Lawyer magazine, a publication of the Riverside County Bar Association. Reprinted with permission.