WORKPLACE JUSTICE SUMMIT III Breaking through the Barriers of Discrimination and Retaliation Emerging Law: Transgender Issues Presented by Lori Speak, Staff Counsel Tuesday, September 8, 2016

FEHA provisions Gender Identity and Gender Expression are enumerated protected categories under the FEHA (CA Govt. Code, §§ 12920, 12921, 12926(r)(2). ) Discrimination based on Gender Identity and Gender Expression prohibited (CA Govt. Code, §§ 12940(a)(b)(c)(d) and (j).) refusal to hire, failure to promote, termination, denial of training compensation, terms, conditions, and privileges of employment harassment

FEHA provisions Workplace appearance provision (CA Govt. Code, § 12949) “Nothing in this part relating to gender-based discrimination affects the ability of an employer to require an employee to adhere to reasonable workplace appearance, grooming, and dress standards not precluded by other provisions of state or federal law, provided that an employer shall allow an employee to appear or dress consistently with the employee’s gender identity or gender expression.”

California code of regulations Statement of Purpose (Cal. Code Regs., § 11029) (b) “The purpose of the laws against discrimination and harassment in employment because of sex is to eliminate the means by which individuals, by virtue of their sex, gender identity, or gender expression, are treated differently, paid less, treated adversely based on stereotyping, subjected to conduct of a sexual nature, subjected to hostile work environments, or made to suffer other forms of adverse action, and to guarantee that in the future equal employment benefits will be afforded regardless of the individual's sex.”

California code of regulations Terms, Conditions, and Privileges of Employment protected under Sex Discrimination (Cal. Code Regs., §§ 11029-11034) Section 11034(g) further explains grooming standards and states, “if such a standard discriminates on the basis of sex and if it also significantly burdens the individual in his or her employment, it is unlawful.”

Definitions (Cal. Code Regs., § 11030) Gender Expression a person’s gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth Gender Identity a person’s identification as male, female, a gender different from the person’s sex at birth, or transgender Sex includes, but is not limited to, gender identity and gender expression

DEFINitions (Cal. Code Regs., § 11030) Sex Stereotype an assumption about a person’s appearance or behavior, or about an individual’s ability or inability to perform certain kinds of work based on a myth, social expectation, or generalization about the individual’s sex. Transgender refers to a person whose gender identity differs from the person’s sex at birth. A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth. A transgender person may or may not identify as “transsexual.”

BATHROOMS and LOCKER Rooms Access to facilities consistent with one’s gender identity Single Stall Restrooms For use by any employee who wants increased privacy Should be a matter of choice Privacy Concerns [C] Bathrooms and Locker Rooms: [C] Transgender persons MUST be allowed access to facilities, including bathrooms and locker rooms, consistent with one’s gender identity. Remember, gender identity is determined by that person’s self-identification not the employer’s or another employee’s perception. Where possible, [C] employers should provide single stall restrooms. [C] This single stall restroom should be open to use by any employee who wants increased privacy. BUT, [C] the use of a separate single stall restroom should always be a matter of choice. So, if there is a choice between gender-based multi-stall restroom or a single stall restroom, a transgender employee should be permitted to choose either restroom. On privacy concerns, [C] while employees have privacy rights protected by the CA constitution, the state also has a compelling interest in protecting all employees from discrimination. [C] Any infringement of the privacy interest resulting from shared restrooms or locker rooms with transgender employees is likely too small to counter the state’s compelling interest in protecting employees. Emotional discomfort is not a sufficient justification for refusing equal access, and [C] there are many other means to achieve privacy for employees, including stall doors, shower curtains, and as noted previously, single stall bathrooms.

OTHER protections Right to Be Addressed by Preferred Name and Pronoun Right Not To Be Asked Questions about Gender Identity or Expression During Interviews or Employment HIPAA and Types of Transitioning If lawful sex segregated job duties are implemented, a transgender employee must be assigned in a manner consistent with their gender identity.

Public Accommodations Unruh civil rights Act All persons within the jurisdiction of this state are free and equal, and no matter what their sex are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. (Civ. Code, § 51, subd. (b).) "Sex" includes a person's gender. "Gender" includes a person's gender identity and gender expression. "Gender expression" means a person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth. (Civ. Code, § 51, subd. (e)(5).)

Hate violence ralph civil rights Act All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51, or because another person perceives them to have one or more of those characteristics. The identification in this subdivision of particular bases of discrimination is illustrative rather than restrictive. (Civ. Code, § 51.7, subd. (a).)

Resources DFEH Poster OSHA Guidelines DFEH Website – resources tab

www.dfeh.ca.gov contact.center@dfeh.ca.gov (800) 884-1684 Videophone (916) 226-5285