Preventing Workplace Harassment, Discrimination, and Retaliation

usage, and participation in activities like sports teams). Physical transition refers to medical treatments an individual undergoes to physically align their body with internal sense of self (e.g. hormone therapies or surgical procedures). 29 DFEH made clear that a transgender person does not need to complete any particular step in the transition process to be protected by the law. Since 2018, employers must also display the DFEH poster on Transgender Rights in the Workplace, which sets forth additional guidance for employers regarding appropriate and inappropriate questions, dress/grooming standards, and obligations regarding bathroom and locker room usage. Specifically, it provides that employers should and should not ask the following questions of employees:  DO ask questions regarding employment history, personal references or other non-discriminatory questions.  DON’T ask questions designed to detect an individual’s sexual orientation or gender identity, including questions about marital status, a spouse’s name, or how members of the household are related to one another.  DON’T ask questions about an employee’s body or whether the individual plans to have surgery. With respect to dress codes and grooming, the DFEH poster advises that employers should and should not do the following:  DO allow employees to dress in accordance with their gender identity and gender expression.  DON’T hold transgender or gender non-conforming employees to any different standard of dress or grooming than any other employee.  DO allow employees to use a restroom or locker room that corresponds to the employee’s gender identity, regardless of the employee’s assigned sex at birth.  DO, if possible, provide access to a unisex single stall bathroom for use by any employee who desires increased privacy regardless of the underlying reason. The DFEH’s regulations were revised in 2017to further address issues regarding gender identity and gender expression and now require employers to:  Permit employees to use facilities that correspond to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth.  Use gender-neutral signage for any single-occupancy facilities, such as “Restroom,” “Unisex,” “Gender Neutral,” “All Gender Restroom,” etc.  Provide feasible alternatives to respect the privacy interests of all employees, such as locking toilet stalls, staggered schedules for showing, shower curtains; but an employer may not require an employee to use a particular facility. 30  DON’T require any employee to use a unisex bathroom as a matter of policy.

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 12