DFEH Issues Guidance for California Employers on Transgender Rights in the Workplace

Individuals who identify as transgender are protected from discrimination in the workplace under California’s Fair Employment and Housing Act (“FEHA”). Specifically, the FEHA prohibits discrimination on the basis of sex, gender, gender identity, and gender expression, defining “gender expression” to mean a “person’s gender-related appearance and behavior whether or not stereotypically associated with the persons’s assigned sex at birth.”

Consistent with the protections afforded by the FEHA, the California Department of Fair Employment and Housing (“DFEH”), has issued a brochure providing guidance for employers on transgender rights in the workplace. The DFEH’s brochure provides clear guidance for employers regarding improper questions in the workplace, enforcement of dress and grooming policies, and accessibility to bathrooms, showers, and locker rooms.

Improper Questions: Employers should not ask questions used to detect a person’s sexual orientation or gender identity, including questions regarding marital status, spouse’s name, or relation of household members to one another.  Employers should also not ask questions about a person’s body or whether the individual plans to have surgery.

Enforcement of Dress Code and Grooming Standards: The DFEH’s brochure makes clear that employers are prohibited from denying an employee the right to dress in a manner suitable for that employee’s gender identity.  In addition, while the FEHA explicitly allows an employer to enforce reasonable workplace appearance, grooming, and dress standards, employers must enforce their policies in a non-discriminatory manner.  This means, for example, that a transgender woman must be allowed to dress in the same manner as non-transgender women.

Restrooms, Showers, and Locker Room Accessibility: The DFEH’s brochure also provides that employers must allow transgender employees access to restrooms, showers, locker room, and other facilities that correspond with their gender identity.  In addition, when possible, the DFEH suggests that an employer should provide an easily accessible unisex single stall bathroom to provide greater privacy.

For more information, the DFEH’s brochure on transgender rights in the workplace can be found here.