DFEH Issues Guidelines on Workplace Issues Related to Transgender Employees

On February 17, 2016, the California Department of Fair Employment and Housing (DFEH) issued guidelines for employers on the rights under California law of transgender employee. They address what questions employers may ask transgender employees during the interview and selection process and at other times, how employers can implement dress codes and grooming requirements in a non-discriminatory manner, and for maintaining facilities that are typically assigned and used on the basis of gender, such as employee restrooms, showers, and locker rooms.

You can find more information about DFEH’s guidance at this link.

DFEH’s action grows out of a 2014 case in which a court ruled that a transgender employee could pursue a discrimination claim under the Fair Employment and Housing Act (FEHA) against an employee that had requested that the employee use restrooms and locker rooms designated for the employee’s biological sex at birth, rather than the employee’s gender identity.

Avoiding Discriminatory Questions

During the interview and selection process employers are free to inquire about employment history and other non-discriminatory questions.  DFEH recommends that employers avoid questions intended to determine a person’s sexual orientation or gender identity, and to avoid questions about whether a person plans to have sex reassignment procedures or surgery.

Dress Codes

DFEH guidelines recommends that dress codes and grooming standards be enforced in a non-discriminatory manner. A transgender man whose biological sex at birth was female must be permitted to dress and groom himself in accordance with his gender identity (like the other persons who identify as men in the workplace). A transgender individual’s compliance with dress codes or grooming standards cannot be subject to scrutiny that would not be accorded to non-transgender employees.

Restrooms and Locker Rooms

All employees, including transgender employees, have the right to use a facility that corresponds with their gender identity—regardless of their biological sex at birth. The DFEH suggests that employers, where possible, should provide unisex single stall bathrooms for any employee who would like increased privacy for any reason, also without regard to gender identity or expression. But use of unisex facilities should always be completely voluntary for all employees.

What this means for employers:

It is not necessary for an employee to have sex reassignment surgery or complete any particular step in transitioning genders to be considered transgender. FEHA’s gender identity expression protections apply to all employees—whether they identify as transgender, or are simply not gender-conforming in their modes of dress, grooming, and behavior.

Employers should be careful to ensure that they avoid questions discriminatory or questions violating employees’ privacy rights, both in the interview and selection process and after.  Employers should also be careful to enforce dress codes and grooming standards in a non-discriminatory manner. Employers must also allow employees to use restrooms and locker rooms that correspond to their gender identity, and if possible, make single-stall restroom and shower facilities to all employees who wish to use them.