Seyfarth Synopsis: New statutory obligations for California employers in 2018 will include prohibitions on inquiries into applicants’ salary and conviction histories, expanding CFRA to employees of smaller employers, expansion of mandatory harassment training to include content on gender identity, gender expression, and sexual orientation, and new immigration-related restrictions and obligations.

California Governor Jerry Brown spent his last day to sign bills in this Legislative Session, October 15, approving and rejecting a number of employment-related bills. Below is our annual summary of those bills that will have—or would have had—the greatest impact on California employers. All approved bills become effective January 1, 2018, unless stated otherwise. Watch this blog for in-depth pieces on the bills below that will pose the most challenges for employers.

APPROVED

Salary Inquiry Ban. After two unsuccessful attempts, AB 168 received the Governor’s approval to make it unlawful in California law for employers, including state and local governments, to ask applicants about their prior salary, compensation, and benefits. The employer may consider prior salary information the applicant voluntarily and without prompting discloses, in setting pay. Don’t forget that Labor Code section 1197.5 already prohibits an employer from using an applicant’s salary history, by itself, to justify a pay disparity. AB 168 will also require employers to provide the position’s pay scale to a job applicant upon reasonable request. Read our in-depth piece on AB 168, and practical implications, here. Adds Section 432.3 to the Labor Code.

Meanwhile, yesterday the Governor vetoed the other pay equity bill we were watching, Gender Pay Gap Transparency Act, AB 1209. More on that bill below.

Ban-the-Box: Prior Conviction History of Applicants. With the approval of AB 1008, the Governor and California Legislature have created yet another protected class of individuals entitled to sue employers under the Fair Employment and Housing Act: applicants denied employment because of their conviction history, where the employer is unable to justify relying on that conviction history to deny employment. AB 1008 makes it unlawful for an employer to include questions seeking disclosure of an applicant’s criminal history on any employment application, inquire or consider the conviction history of an applicant before extending a conditional offer employment, or consider or distribute specified criminal history information in conducting a conviction history background check. If an employer intends to deny a position solely or in part because of the applicant’s prior conviction, the employer must make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the duties of the job, consider certain topics, and allow the applicant to dispute the accuracy of the conviction history. Read our in-depth analysis, implications, and tips, of the “Scarlet Letter Act” here. Adds Section 12952 to the Government Code, and repeals Section 432.9 of the Labor Code.

New Parent Leave Act and Parental Leave DFEH Mediation Pilot Program. SB 63 extends CFRA’s protections to smaller employers (with at least 20 employees within 75 miles) and prohibits those employers from refusing to allow employees—with more than 12 months and at least 1,250 hours of service—to take up to 12 weeks of parental leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement. An employer employing both parents who both are entitled to leave for the same child does need not give more than 12 weeks of leave total to the employees (which may be granted simultaneously if the employer chooses). Further, an employer can recover the costs of maintaining the health plan for employees that do not to return to work after their leave exhausts because of a reason other than a serious health condition or other circumstances beyond the employee’s control. Beginning January 1, 2018 and ending January 1, 2020, the DFEH, after receiving funding from the Legislature, will create a parental leave mediation pilot program under which an employer may request all parties to participate in mediation within 60 days of receiving a right-to-sue notice. This bill prohibits an employee from pursuing any civil action under these provisions (and tolls the statute of limitations) until the mediation is complete, meaning when either party elects not to participate, withdraws from mediation, or notifies the DFEH that further mediation would be fruitless. Adds Section 12945.6 to the Government Code.

Retaliation: Expanding The Labor Commissioner’s Authority. With the Governor’s October 3 approval of SB 306, the DLSE will be authorized to investigate an employer—with or without a complaint being filed—when, during a wage claim or other investigation, the Labor Commissioner suspects retaliation or discrimination. The bill will also allow the Labor Commissioner or an employee to seek injunctive relief (that the employee be reinstated pending resolution of the claim) upon a mere finding of “reasonable cause” that a violation of the law has occurred. That injunctive relief, however, would not prohibit an employer from disciplining or firing an employee for conduct that is unrelated to the retaliation claim. The bill also authorizes the Labor Commissioner to issue citations directing specific relief to persons determined to be responsible for violations and to create certain procedural requirements. Amends Section 98.7 and adds Sections 98.74, 1102.61, and 1102.62 to the Labor Code.

Immigration: Worksite Enforcement Actions. AB 450, the “Immigrant Worker Protection Act,” prohibits employers from allowing immigration enforcement agents to have access to non-public areas of a workplace, absent a judicial warrant, and prohibits immigration enforcement agents to access, review, or obtain employee records without a subpoena or court order, subject to a specified exception. This bill requires an employer to provide notice of an immigration agency’s inspection of I-9 Employment Eligibility Verification forms or other employment records within 72 hours of receiving the federal notice of inspection—using a template created by the Labor Commissioner—to current employees; requires an employer to provide affected employees (i.e., those who may lack work authorization or whose documents have deficiencies) a copy of the inspection notice, upon reasonable request; and requires employers to provide affected current employees, and their authorized representative, a copy of the immigration agency inspection results and written notice of the obligations of the employer and the affected employee arising from the action. The bill grants exclusive authority to the Labor Commissioner or Attorney General to enforce these provisions and requires that any penalty recovered be deposited in the Labor Enforcement and Compliance Fund. Penalties for failure to satisfy these prohibitions and for failure to provide the required notices are: $2,000 up to $5,000 for a first violation, and $5,000 up to $10,000 for each further violation. The Labor Commission may recover up to a $10,000 penalty for each instance an employer re-verifies the employment eligibility of a current employee at a time or in a manner not required by federal law. Stay tuned for a detailed analysis of AB 450 coming soon. Adds Sections 7285.1, 7285.2, and 7285.3 to the Government Code; adds Sections 90.2 and 1019.2 to the Labor Code.

Harassment Training: Gender Identity, Gender Expression, and Sexual Orientation. SB 396 requires employers with 50 or more employees to add items to already mandated biennial supervisory training to prevent sexual harassment. The new content must include practical examples to address harassment based on gender identity, gender expression, and sexual orientation. Employers must also post a DFEH-developed poster regarding transgender rights. The bill also makes changes to the Unemployment Insurance Code. Amends Sections 12950 and 12950.1 of the Government Code.

VETOED

Gender Pay Gap Transparency Act. AB 1209 would (as of July 2019) have required employers with at least 500 California employees to collect information on differences in pay between male and female exempt employees and between male and female Board members. The bill would have required employers to submit the information to the California Secretary of State by July 1, 2020, in a form consistent with Labor Code § 1197.5, and to provide an update to the Secretary of State every two years. The bill would have required the Secretary to publish the information on a public website if the Legislature provided it with sufficient funding. Yesterday the Governor vetoed the bill, stating—as many employers’ groups had pointed out—that the bill’s ambiguous wording made it unclear that the bill would “provide data that will meaningfully contribute to efforts to close the gender wage gap. Indeed, I am worried that this ambiguity could be exploited to encourage more litigation than pay equity.” He also cited the trust he has placed in his Pay Equity Task Force to provide guidance and recommendations to “assist companies around the state with assessing their current wage practices.” For more detail on implications of this bill had it passed, click through to our in-depth analysis on AB 1209.

Reproductive Health. The Governor vetoed AB 569 on October 15, stating that the FEHA “has long banned such [reproductive health-based] adverse actions, except for religious institutions. I believe those types of claims should remain within the jurisdiction of the [DFEH].” The bill would have added a provision to the Labor Code prohibiting an employer from taking adverse employment action against an employee or the employee’s dependents or family members for their reproductive health decisions, including the use of any drug, device, or medical service (e.g., birth control, abortions, or in vitro fertilization). An employer that violates this prohibition would have been subject to penalties under Labor Code § 98.6, as well as reinstatement, reimbursement of lost wages and interest, and other appropriate compensation or equitable relief. This bill would have prohibited employers from attempting to contract out of these requirements, by making null and void any express or implied agreement waiving these requirements. The bill would have required employers to include a notice of these employee rights and remedies in their handbooks.

Employee Request: Injury and Illness Prevention Program. AB 978 would have required an employer to provide a free copy of the company’s injury prevention program to an employee, or their representative, within 10 days of receiving a written request. A representative would have included a recognized or certified collective bargaining agent, attorney, health and safety professional, nonprofit organization, or immediate family member. AB 978 would have allowed an employer to take reasonable steps to verify the identity or the person making the written request and authorized an employer to assert impossibility of performance as an affirmative defense against allegations of violations of these provisions. Governor Brown found this bill to be “unnecessary and duplicative” of current regulatory proposals sitting with the Cal-OSHA Standards Board and noted that their advisory committee would be “better suited to determine how to properly implement requirements of this kind.”

BILLS THAT FAILED TO MAKE THE LEGISLATIVE CUT

Opportunity to Work Act. The notorious AB 5 would have required employers with 10 or more employees in California to offer additional hours of work to existing nonexempt employees before the employer could hire additional or temporary employees. This bill piggy-backed on the San Jose voter-approved Opportunity to Work Ordinance that, effective March 2017, would have required employers to offer part-time employees additional hours before hiring new or temporary employees. Read more on what AB 5 would have implemented herehere, and watch here.

Rest Breaks. AB 817 would have created an exception to Labor Code section 226.7’s off-duty “rest period” requirement for employers providing emergency medical services to the public. The bill would have allowed EMS employers to require their employees to monitor and respond to emergency response calls during rest or recovery periods without penalty, so long as the rest period is rescheduled.

Retail Employees: Holiday Overtime. AB 1173 would have established an employee-selected overtime exemption that would have allowed a “retail industry” employee to work up to 10 hours per day with no overtime pay during the holiday season (November through January). Overtime paid at time and one-half of the employee’s regular pay rate would have applied to over 40 hours worked in a workweek or 10 in a work day; double time would have applied to work over 12 hours per day and over eight hours on the fifth, sixth, or seventh day in a workweek. The bill would have required employees to submit a written request for the flexible work schedule for approval by the employer. The authors of this bill did not specifically define what “retail industry” would have meant.

Overtime Compensation: Executive, Administrative, or Professional Employees. AB 1565 would have exempted an executive, administrative, or professional employee from overtime compensation if the employee earns a monthly salary of $3,956 or at least twice the state minimum wage for full-time employment, whichever is greater. This bill would have had California follow President Obama’s FLSA regulations increasing the yearly salary exempt threshold from $23,660 to $47,476 for executive, administrative, and professional workers. (Those regulations have been enjoined by a federal court.)

Health Professional Interns: Minimum Wage. AB 387 would have broadened the definition of employers required to pay minimum wage to include anyone who employs any person engaged in supervised work experience (i.e., students working clinical hours) to satisfy the requirements for licensure, registration, or certification as an allied health professional. This bill would have applied only to a work experiences longer than 100 hours and would not have applied to employers with fewer than 25 allied health professionals or a primary care clinic.

Resident Apartment Manager Wages. AB 543 would have extended an exemption from Industrial Welfare Commission orders allowing employers, who do not charge rent to a resident apartment manager pursuant to a voluntary agreement, to apply up to one-half of the apartment’s fair market value (no value cap) to meet minimum wage obligations to the apartment manager. This was up from the two-thirds previously provided but capped at $564.81 per month for singles, $835.49 for couples.

Voluntary Veterans’ Preference Employment Policy Act. Both AB 353 and its almost identical twin AB 1477 hoped to revise FEHA’s existing Vietnam-Era veterans’ status provision but failed to make it out of both houses and out of the house of origin, respectively. The bills would have expanded a private employer’s authority to institute and uniformly grant a hiring preference for veterans regardless of where the veteran served. The bills stated that the hiring preference would not have violated FEHA or any local or state equal opportunity employment law or regulation. But the bill would have prohibited the use of a veterans’ preference policy for the purpose of discrimination on the basis of any protected classification.

Credit and Debit Card Gratuities. AB 1099 would have required an entity—defined as “an organization that uses online-enabled applications or platforms to connect workers with customers … including, but not limited to, a transportation network company” (e.g., Uber)—to accept tips by credit or debit cards if the entity allows customers to pay with credit or debit cards. The bill would have required that the tip be paid to the worker the next regular payday following the date the customer authorized the card payment. This bill made it out of the Assembly but the author canceled its hearing in the Senate Committee on Labor and Industrial Relations so we may see this bill again next year.

Labor Organizations: Compulsory Fee Payments. AB 1174 would have established the “California Right to Work Act of 2017” to prohibit a requirement that employees pay into a labor union, charity, or other third party as a condition of employment or continuing employment. This bill would have made California part of the list of 28 other Right to Work states in the nation.

Employer Liability: Small Business and Microbusiness. AB 442 would have prohibited Cal OSHA from bringing any “nonserious violation” against small business or microbusiness employers without first notifying the employer of the violation and the right to cure within 30 days. This safe harbor would not have applied to any willful violation. The impact of this bill would have been far reaching—nearly 70% of California employers employ only a handful of employees.

Good Faith Defense: Employment Violations. SB 524 would have allowed an employer to raise an affirmative defense that, at the time of an alleged violation, the employer was acting in good faith when relying upon a valid published DLSE opinion letter or enforcement policy. This bill would not have applied to the DLSE’s prosecution of payment of unpaid wages.

PAGA: 2017’s Three Failed Efforts. 

AB 281 attempted to reform PAGA by (1) requiring an actual injury for an aggrieved employee to be awarded civil penalties, (2) excluding health and safety violations from the employer right to cure provisions, and (3) increasing employers’ cure period to 65 calendar days, up from 33.

AB 1429 would have limited the violations an aggrieved employee can bring, required the employee to follow specific procedures prior to filing suit, limited civil penalties recoverable to $10,000 per claimant and excluded the recovery of filing fees, and required the superior court to review any penalties sought as part of a settlement agreement.

AB 1430 would have required the Labor and Workforce Development Agency (“LWDA”) to investigate alleged Labor Code violations and issue a citation or determination regarding a reasonable basis for a claim within 120 calendar days; and allow an employee private action only after the LWDA’s reasonable basis notification or the expiration of the 120 day period. Read our further analysis of the proposed PAGA amendments here.

Workplace Solutions.

For more information on how these new Peculiarities might affect your company, read our in-depth focus blogs and contact your favorite Seyfarth attorney.

Seyfarth Synopsis: Just when you thought it was safe to relax for the summer, California is giving employers four new reasons to keep on their toes. Laws going into effect on July 1, 2017, will address (1) domestic violence, (2) the minimum wage, (3) criminal background checks, and (4) transgender rights.

Notice Posting and Leave for Domestic Violence Issues

Employers must now notify employees of workplace rights regarding domestic violence victims. By way of background, Labor Code section 230.1 forbids employers with 25 or more employees to discriminate against employees who take time off to

  • seek medical attention for injuries caused by domestic violence, sexual assault, or stalking,
  • obtain services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence, sexual assault, or stalking,
  • obtain psychological counseling for domestic violence, sexual assault, or stalking, or
  • participate in safety planning or other actions (including temporary or permanent relocation) to increase safety from domestic violence, sexual assault, or stalking.

Employees taking time off must give the employer reasonable advance notice, unless the advance notice is not feasible. But if the employee takes an unscheduled absence, the employee remains protected by providing, within a reasonable time after the absence, a certification of the protected reason for leave. Employers must maintain the confidentiality of the reason.

The Labor Commissioner has developed a notice form for use which can be found here. You can find Section 230.1 here.

Minimum Wage Increases for Los Angeles, San Francisco, Santa Monica and Emeryville

Earlier this year, California once again hiked its minimum wage (to $10.50).  But for some municipalities that was not enough. On July 1, the minimum wage rises in certain California cities/counties:

Before Increase:                    July 1, 2017:

Emeryville:
(56 or more employees)         $14.82                                     $15.20
(55 or fewer employees)        $13.00                                     $14.00

Los Angeles:
(25 or more employees)         $10.50                                     $12.00
(25 or fewer employees)        $10.00                                     $10.50

San Francisco:                        $13.00                                     $14.00

Santa Monica:
(26 or more employees):        $10.50                                     $12.00
(25 or fewer employees):       $10.00                                     $10.50

For further information, visit your local website.

New Criminal Background Check Regulations

On July 1, the Fair Employment and Housing Council will begin to enforce new regulations which will impose additional burdens on use of criminal background checks in employment decisions. As with any criminal background check policy that creates an adverse impact on a protected class, the employer must justify the policy as job-related and consistent with business necessity.

The regulations identify two ways an employer could justify the policy: (1) show that a “bright-line” disqualification properly distinguishes those who do and do not pose an unacceptable level of risk; (2) individually assess the individual’s qualifications. The employer must also give the applicant or employee a reasonable opportunity to show that the conviction information is wrong. If the individual provides evidence of factual inaccuracy, then the conviction cannot be considered in the employment decision.

Even when an employer can show job-relatedness and business necessity, an individual can still prevail on a claim if there is a less discriminatory alternative (such as a narrower list of disqualifying convictions) that advances the employer’s legitimate concerns as effectively as the challenged practice would.

The regulations pose a substantial new risk to employers who maintain no-hire policies for individuals with criminal convictions. Any such policy should be reviewed for compliance.

You can see the final regulations here.

FEHC Transgender Rights Regulations

On July 1, Fair Employment and Housing Council regulations will expand upon laws relating to gender identity and expression.

As background, note that as of March 1, 2017, all single-user toilet facilities in any California business establishment, place of public accommodation, or government agency must be identified as “all-gender.” As of July 1, transgender employees must have equal access to restrooms and other facilities, including locker rooms, dressing rooms, and dormitories. Employers now must allow employees to use those facilities without regard to the employee’s assigned sex at birth. The regulation provides that employers may make reasonable, confidential inquiries of employees to ensure that facilities are safe and adequate for use.

The July 1st regulation also

  • require employers to honor an employee’s request to be identified by a preferred gender or name,
  • forbid employers to impose appearance, grooming or dress standards inconsistent with an individual’s gender identify and gender expression,
  • forbid employers to require proof of an individual’s sex, gender, gender identity or gender expression, and
  • expand existing gender expression, gender identity and transgender definitions to include “transitioning” employees.

The expanded definition of this protected class may likewise expand liability for harassment, which is particularly likely with respect to a group traditionally subject to discrimination.

Employers should review policies and consider management training to ensure compliance with the California initiatives around gender identity and expression.

You can see the newly adopted regulation here.

Edited by Michael A. Wahlander.

Seyfarth Synopsis:  With summer months almost upon us, here are some dress code tips and tricks for employers to ensure both employee compliance with relaxed summer dress codes and increased employee motivation and morale. We also note pitfalls to avoid when developing these dress codes.

Who doesn’t love wearing khakis and polos to work? Relaxed summer dress codes are a common practice among businesses that seek to boost employee morale during a time when some folks want to be at the beach. Establishing these summer dress code guidelines, however, can be a challenge because they can introduce ambiguity and confusion. Employees may not have a clear sense of what attire satisfies a “relaxed” dress code, and as a result wear clothing that is inappropriate.

Here are some considerations to keep in mind, with suggested language for dress codes.

Acceptable Summer Dress Code Restrictions

Establish written guidelines for dress in the workplace. One place to put them is the employee handbook. If a relaxed summer dress code is a new addition, then an addendum to the dress code policy may be in order, or even a stand-alone policy.

California recognizes the need for employers to adopt dress and grooming standards based on business needs. These include safety in the workplace, fostering an atmosphere of professionalism, and adherence to accepted social norms or customs. With these points in mind, it is generally okay to ask that employees not wear the following:

  • shorts
  • crop tops, halter tops, tank tops and spaghetti straps
  • “maxi” dresses
  • sun dresses
  • jumpsuits, rompers, or overalls
  • T-shirts
  • flip flops, sandals, and other casual footwear
  • sunglasses
  • hats

The EEOC generally tolerates dress codes that apply to all employees within a certain job category, even if the dress code might conflict with some workers’ ethnic beliefs or practices. Employers, then, can require employees to leave their nose rings, tongue studs, and other body piercings at home.

What To Avoid: Discriminatory Dress Codes

In America generally, dress codes that differentiate between men and women are not unlawful as sex discrimination because these employer requirements do not affect employment opportunities. Employers thus may allow women, but not men, to wear their hair long, or may ban earrings for men, while allowing them for women. But California takes things to the next level: California law forbids employers to ban the wearing of pants, unless that ban applies to both genders. California thus protects the right of women to wear pantsuits. There are a few exceptions to the pantsuits rule, such as dress codes requiring employees “in a particular occupation to wear a uniform” or requiring employees to wear a costume while portraying a specific character in a dramatic role.

Federal law does not recognize gender as a stand-alone category and instead identifies “gender identity, including transgender status” as types of sex discrimination. Not surprisingly, California is different here as well.  California’s interpretation of gender includes “gender identity and gender expression.” “Gender expression” in California includes gender-related appearance and behavior whether or not it is stereotypically associated with the person’s assigned gender at birth. This language aims to protect persons whose physical and behavioral characteristics are associated with a particular gender.  Summer dress codes, as with any dress code, should take into account this expansive definition.

California is also peculiar in the area of religious dress and grooming practices. California law, unlike federal law, defines “religious grooming practices” as including  “all forms of head, facial, and body hair that are part of the observance” of the individual’s religious creed. Along those same lines, California is also peculiar in that it forbids segregating an employee to achieve a religious accommodation. Thus, an employer confronted with an employee with a religious grooming practice does not have the option of accommodating that practice by moving that the employer away from customers and to the back of the house.

Workplace Solutions

The summer months by their nature inspire a more casual atmosphere (especially in sunny California!). While dress codes can be tailored to reflect this, it is important to ensure that they still comply with the law and that they are consistently and equitably enforced (especially in California). If you are considering instituting a summer dress code, or if you would like to review an existing one, please do not hesitate to reach out to our experts in Seyfarth’s California Workplace Solutions Group.

Edited by Michael Wahlander.

Seyfarth Synopsis: With increased attention placed on transgender rights in recent years, employers should pay close attention to transgender discrimination and related issues in the workplace. This post offers some tips for some best practices to minimize risk in managing your workforce.

The Basics. Everyone in the workplace must be mindful of using accurate terminology when talking about gender and gender identity. Here are some common terms that are a good starting point for having respectful conversations.

  • Gender Identity: A person’s internal, deeply-felt sense of being male, female, something other or in-between.
  • Gender Expression: An individual’s external characteristics and behaviors such as appearance, dress, mannerisms, speech patterns, and social interactions that are perceived as masculine or feminine.
  • Transgender: An umbrella term that can describe people whose gender identity or gender expression differ from the sex they were assigned at birth.
  • Transsexual: A term most commonly used to refer to someone who transitions from one gender to another, often using medical intervention. The person may also identify as transgender.
  • Gender non-conforming: A person who has, or is perceived to have, gender characteristics or behaviors that do not conform to traditional or societal expectations.

What’s the Law?

Although in recent the EEOC has aggressively interpreted the sex-discrimination provision of Title VII to forbid discrimination against transgender employees, no federal statute expressly addresses employment discrimination based on gender identity.

California, on the other hand, has consistently been in the forefront of legislation bolstering transgender rights. In 2003, AB 196 clarified that FEHA discrimination claims based on “sex” include a person’s gender identity or gender-related appearance or behavior, effectively prohibiting employers from discriminating against applicants and employees because of their gender identity or expression. In 2011, the Gender Nondiscrimination Act directly added “gender identity” and “gender expression” as protected characteristics under FEHA, making it explicit that discrimination based on those characteristics is unlawful.

And the DFEH, earlier this year, provided guidance on transgender employee rights in the workplace (which we wrote about here). The new FEHA regulations that went into effect on April 1, 2016, added protections for transgender employees and applicants.

Most recently, Governor Jerry Brown signed into law AB 1732, which will require, beginning in March 2017, all businesses and public buildings to label their single-use restrooms as “all gender” and update signage (rather than having designated “men’s” and “women’s” restrooms). This law may affect your workplace and require updating your bathrooms in the next few months.

Best Practices. Here are some practices to build awareness about transgender issues and ensure a workplace that is inclusive of transgender employees.

  • Open Door Policy. Having an open door policy can promote dialogue about the successes and challenges of transgender employees in the workplace, convey to all employees that their voices are valued, and help employers develop best practices to retain and support a diverse workforce.
  • Respect privacy rights. Always remember that it is a personal choice whether to discuss openly or keep private one’s gender identity. Employers should not discuss or share an employee’s gender identity without the employee’s permission.
  • Provide employee training. Employers should provide diversity training including issues related to gender identity and expression. The training should emphasize that discrimination based on gender identity or gender expression is unlawful.
  • Celebrate diversity. A workplace culture should be inclusive of employees no matter their gender identity or expression. Consider establishing an affinity group that transgender and gender non-conforming employees and their allies are welcome (but not obligated) to join.
  • Review dress codes. Dress codes should be free of gender stereotypes. Policies that describe what men should wear versus what women should wear may be problematic, as they do not account for employees who are gender non-conforming. These policies should also be enforced in a non-discriminatory manner and allow each transgender individual to dress in accordance with that individual’s gender identity .

Workplace Solutions: Employers can take many steps to create inclusive workplaces and ensure compliance with the law. As always, Seyfarth attorneys are here to help employers evaluate their policies, practices, and procedures to minimize risk and avoid potential liability.

Seyfarth Synopsis:  The California Fair Employment and Housing Council (“FEHC”) is currently drafting new regulations that define employment practices that constitute discrimination against transgender applicants and employees. On April 7, 2016, the FEHC met in Oakland to discuss and hear public comment on its new, draft proposed regulations, which are in their early stages of development. The next hearing will be on June 27, in Los Angeles.

The DFEH already publishes a guidance document, “Transgender Rights in the Workplace,” defining certain terms and answering employers’ Frequently Asked Questions about transgender employees in the workplace. (See February 24, 2016 Client Alert, “DFEH Issues Guidelines Regarding Transgender Employees”). And the new FEHA regulations that went into effect on April 1, 2016, added protections for transgender employees and applicants. Now, in a further step toward providing direction to employers and to increase protections for transgender workers, the FEHC proposes to amend the FEHA regulations again with proposed Regulations Regarding Transgender Identity and Expression. These will affirmatively require employers to make workplaces non-discriminatory by:

–     Providing “comparable, safe, and adequate” facilities (such as restrooms and locker rooms) to employees without regard to the sex of the employees;

–     Permitting employees to use the facilities that correspond to the employee’s gender identity or gender expression;

–     Using gender-neutral signage on single occupancy facilities under their control; and

–     Addressing and referring to an employee with their preferred name, gender, and pronoun.

Likewise, the proposed regs would expand discrimination against transgender workers beyond overt discrimination, such as failing to hire or terminating a transgender employee. Employers would also be in violation of the FEHA’s prohibition of discrimination against transgender workers by:

–     Requiring an employee to use a particular facility, or undergo or provide proof of any particular medical treatment to use facilities designated for use by a particular gender;

–     Requiring an employee to dress or groom themselves in a manner inconsistent with their gender identity or gender expression;

–     Requiring an applicant or employee to state whether they are transgender;

–     Considering an applicant to have been untruthful by identifying themselves on an employment application in a manner inconsistent with their assigned sex at birth;

–     Enquiring as to or requiring proof of an individual’s sex, gender, gender identity, or gender expression as a condition of employment, unless the employer demonstrates a bona fide occupational qualification or the employee initiates communication with the employer regarding adjustments to their working conditions; and

–     Discriminating against an employee for undergoing a social transition (changing their gender presentation) or a physical transition (receiving medical treatment including hormone therapy or gender reassignment surgeries).

The regulations also propose to revise current regulations regarding Bona Fide Occupational Qualifications, workplace safety, fringe benefits, and working conditions, by replacing binary gender language (i.e., “male” and “female”) with gender neutral language to indicate that the same regulations apply to transgender and gender non-conforming employees and applicants.

These new regulations are scheduled for their next round of public hearing and comment on June 27, 2016. We will provide an update on the latest developments. In the meantime, employers should familiarize themselves and their supervisors with the current guidance and proposed regulations to answer questions they may have about transgender applicants and employees and to understand the emerging standards to avoid liability for discrimination. Attorneys in Seyfarth’s California Workplace Solutions Group are available to help.

Edited by Michael Wahlander.