California Enacts New Transgender Employment Laws

California’s new transgender regulations took effect July 1, 2017. The new regulations expand on Fair Employment and Housing Act laws that prohibit employers from discriminating or harassing applicants and employees who identify as transgender regardless of the person’s sex assigned at birth. An employee’s right to appear and dress consistent with their gender is now protected. In addition, new regulations, set forth in California Code of Regulations, Title 2, sections 11030, 11031, and 11034, now protect gender identity and gender expression. These regulations specifically define the following:

  1. 1. Transgender. Transgender is now defined as a person whose gender identity differs from his/her sex assigned at birth.
  2. 2. Gender expression. Gender expression refers to a person’s gender related appearance or behavior. 
  3. 3. Gender identity. Gender identity is defined as a person’s internal understanding of his/her gender. It also includes the perception of a person’s gender identity.

Key changes to the FEHA include the following:

  1. 1. Transitioning

The new regulations briefly describe the notion of transitioning. Transitioning may include hormone therapy, surgical alterations, or undergoing other medical procedures related to gender. An employer cannot discriminate against an employee who is transitioning or who has transitioned. Employers are also not allowed to directly or indirectly ask employees whether or not they are transitioning.

  1. 2. Employee Names & Gender Requests

Employers are required to honor an employee’s request to be identified by a preferred gender, name, or pronoun. Employers are allowed to use an employee’s legal name or gender as indicated on an official government issued document to fulfill a legally mandated obligation.

  1. 3. Gender Information

Employers are prohibited from requesting proof of an applicant or employee’s sex, gender, or gender identity or expression. An employer can request for the information to be provided on a voluntary basis. An employee can also initiate conversation regarding their gender orientation without recourse to the employer. An employer can require an employee to state their gender to determine whether he/she meets a “bona fide occupational qualification.”

  1. 4. Facility Accessibility

Employers must ensure all employees, including transgendered, now have equal access to comparable, safe, and adequate facilities regardless of the employee’s sex. An employee now has a right to use a facility that corresponds to his/her gender identity or gender expression. Facilities include restrooms, locker rooms, and showering areas.

  1. 5. Signage

Gender-neutral signage is required for single-occupancy facilities under an employer’s control.

California employers should review their equal employment opportunity laws to make sure they are following the new regulations of the FEHA. Under the new rules, if an employee requests to be identified with a preferred gender, and an employer fails to honor such a request, the employee can file a lawsuit against the employer under the new regulations. An employee’s gender identity should be respected. Employers should train managers and supervisors on the new regulations to ensure that they follow them.

California’s New Employment Law Bans Criminal History

Under a new law which took effect July 1, 2017, California employers are no longer be allowed to consider an applicant’s criminal history when making employment decisions if doing so will have an adverse impact on applicant in a legally protected class (race, national origin, or gender) as defined by the Fair Employment and Housing Act.  The new regulations limit an employer’s ability to inquire into prior arrests of an applicant which did not result in a criminal conviction. The new law applies to employers with five or more employees. An employer can consider criminal history when hiring an applicant if they can establish the practice is job related and consistent with business necessity.

New California Law Prohibits Asking About Salary History

On October 12, 2017, Governor Jerry Brown of California signed into law a state-wide ban on employer inquiries into an individual’s salary history. The new law, AB 168, prohibits employers from inquiring about an applicant’s past salary history. Employers are also prohibited from seeking past salary information when determining a proposed new-hire salary. Employers must also provide employee position pay scales when requested. Nevertheless, if an applicant voluntarily provides this information to an employer, the employer may rely on it when considering a potential salary to offer. The new law will apply to all employers, including state and local governments, and will take effect on January 1, 2018. The goal of the new bill is to narrow the gender wage gap between men and women. For example, women who are paid less the men may continue to suffer unequal pay if their new salary is based on their prior salary history. Employers should focus on an applicant’s qualifications and their internal pay scales when deciding which candidate is a good fit for a position. Employers should also view their job application forms to make sure they are not directly soliciting salary information.


New Baby Bonding Law For California Small Business Employers

Effective January 1, 2018, California small business owners will be required to provide 12 weeks of baby bonding leave to employees. On October 12, 2017, Governor Jerry Brown signed SB 63 expanding on parental leave rights of California small business employees. Currently, the California Family Rights Act and Family and Medical Leave Act requires employers with 50 or more employees to provide up to 12 weeks of leave to an employee within one year of an adoption, child’s birth, or foster care placement. Employees who worked for more than 12 consecutive months for at least 1,250 hours can take up to 12 weeks of CFRA or FMLA leave. Upon returning to work, employees can return to their former position or be placed in a comparable one. Employers are also prohibited from retaliating against employees taking CFRA or FMLA leave. As of January 1, 2018, SB 63 now requires employers with 20 to 49 employees to allow up to 12 weeks of baby bonding leave.  The Department of Fair Employment and Housing (DFEH) has created a pilot program to provide mediation services between employers and employees for disputes that may arise regarding the new requirements.