December 8, 2021

Volume XI, Number 342

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December 07, 2021

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DFEH Issues Guidelines for Protecting Transgender Rights in Workplace: California Department of Fair Employment and Housing

The California Department of Fair Employment and Housing (“DFEH”) recently issued guidelines on transgender employee rights, addressing what types of questions employers may ask transgender employees and applicants. The guidelines also address how employers can implement dress code and grooming standards, and make suggestions for maintaining employee restrooms.

An employee need not have undergone sex reassignment surgery for these guidelines to apply, as the Fair Employment and Housing Act recognizes “gender expression” as “a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” (Govt. Code section 12926(q).) The new guidelines are summarized as follows:

Employers Must Avoid Inappropriate Questions at Work and During Interviews

The DFEH recommends that interviewers avoid questions designed to determine a person’s sexual orientation or gender identity. This includes questions about a person’s marital status, spouse’s name, and relationship to others in the person’s household. Employers should also avoid questions about whether a person plans to have sex reassignment procedures.

Employers Must Apply Dress Codes Consistently

Employers must enforce dress codes and grooming standards in a non-discriminatory manner. For example, a transgender woman must be allowed to dress and groom herself in accordance with the employer’s dress and grooming standards that apply to other women in the workplace. The employer cannot judge the transgender woman’s compliance with its dress code or grooming standards more harshly than it judges other women’s compliance.

Employers Must Provide Appropriate Restrooms For All Employees

Transgender employees have the right to use restrooms which correspond with their gender identity. The DFEH suggests that, where possible, employers provide unisex single-stall bathrooms for any employee who would like increased privacy for any reason. However, use of the unisex bathroom must be completely voluntary and no employee – transgender or otherwise – can be forced to use the unisex bathroom instead of the bathroom which corresponds to his or her gender identity.

Jackson Lewis P.C. © 2021National Law Review, Volume VI, Number 69
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About this Author

Amber Gardina-Quintanilla, Jackson Lewis, Handbook Drafting Lawyer, Policy Compliance Attorney
Associate

Amber Gardina-Quintanilla is an Associate in the San Diego, California, office of Jackson Lewis P.C. Her practice focuses on employment litigation, including preventive advice and counsel.

Ms. Gardina-Quintanilla advises and represents employers in a broad range of employment law matters, including those involving discrimination and harassment, wage and hour, wrongful termination, and retaliation claims. She also assists employers in drafting handbooks and policies to comply with current laws.

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619-573-4923
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