An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

unlawful gender harassment includes a person’s gender identity and gender expression. The term “gender expression” is defined as “a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” 862 Transgender employees and students are protected under this category. The DFEH has issued guidelines on the rights of transgender employees in the workplace. 863 Both employees and students have the right to use bathrooms and locker rooms that correspond to their gender identity. A transgender person does not need to complete any particular step in the gender transition process to be protected by the law. In 2017, the DFEH issued revised regulations regarding the issues of gender identity and gender expression. The regulations expanded the definition of gender identity to include employees who identify as neither male nor female or a combination of both. 864 Employers must refer to employees by their preferred name and pronouns, even if it does not correspond to their birth gender. The employee’s legal name, however, must be used on any legal document, such as tax reporting or wage statements. Applicants also may not be penalized if they do not indicate their gender on an employment application. 865 The revised regulations also clarify that with respect to bathroom or facilities use, employers may not require employees to provide any documentation regarding their gender. LCW Practice Advisor Schools subject to the FEHA may still require employees to adhere to reasonable workplace appearance, grooming, and dress standards as long as they allow employees to appear and dress In addition, harassing conduct of a sexual nature, whether motivated by hostility or by sexual interest, is deemed based on sex, regardless of the gender of the victim or the sexual orientation of the harasser. Therefore, same-sex harassment and harassment of someone of another sex, can both constitute unlawful harassment, even if done by an individual that has a sexual preference other than the sex of the person targeted. 867 California also requires schools to provide reasonable accommodation for conditions related to pregnancy or childbirth if the employee so requests on the advice of her health care provider. 868 G. A GE The prohibition against discrimination and harassment based on age protects employees who are at least 40 years of age. 869 H. S EXUAL O RIENTATION California law prohibits discrimination and harassment based on sexual orientation. This prohibition protects people who identify themselves as homosexual, heterosexual or bisexual. consistently with the employee’s gender identity and protect them from harassment and discrimination on that basis. 866

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 214