On October 15, 2017, California passed Senate Bill (SB) 396, a new law that requires employers to train supervisors on how to identify and prevent harassment based on gender identity, gender expression and sexual orientation. Employers must include these components in their harassment training for supervisors by January 1, 2018. The new law also requires employers to display a Department of Fair Employment and Housing (DFEH) poster regarding transgender rights in a prominent and accessible location.
California law and the DFEH defines “gender identity,” “gender expression,” “transgender,” “sex” and “sexual orientation” as follows:
- “Gender identity” is “each person’s internal understanding of their gender, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.”
- “Gender expression” is “a person’s gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth.” This manifestation can include how a person dresses, acts, speaks or interacts with others.
- “Transgender” is “a general term that refers to a person whose gender identity differs from the person’s sex at birth.” A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth.
- “Sex” includes, but is not limited to:
- A person’s gender, gender identity and gender expression;
- Breastfeeding; and
- Medical conditions related to pregnancy, childbirth or breastfeeding.
- “Sexual orientation” is a person’s emotional, romantic or sexual attraction to another person. Types of sexual orientations include, but are not limited to, heterosexuality, homosexuality, bisexuality, pansexuality and asexuality.
In 2017, the DFEH approved new regulations outlining the rights of transgender employees in the workplace. When combined with prior DFEH guidance on this issue, employers must adhere to the following practices:
Restrooms: All employees have a right to use a restroom that corresponds with their gender identity. Employers must use gender-neutral signage for single-occupancy facilities under their control. They cannot require any proof of sex or gender for an employee to use a particular facility.
Dress codes: Employers must enforce dress codes in a non-discriminatory manner and may not deny employees the right to dress in a way that reflects their gender identity. For example, a transgender woman may comply with the same dress code as a non-transgender woman and may not be held to a harsher standard.
Preferred name: Employers must abide by an employee’s request to be identified by a certain name or gender identity unless there is a legally-mandated obligation to use the employee’s legal name or gender.
Documentation: An employer cannot require documentation as proof of sex, gender, gender identity or gender expression as a condition of employment.
Interview questions: Employers may not ask questions designed to detect a person’s sexual orientation or gender identity, such as inquiring about an applicant’s marital status, a spouse’s name, or the applicant’s relation to household members. Likewise, interviewers should avoid asking questions about a person’s body or whether they plan to have surgery.
Key Takeaways for Employers
In order to prepare for SB 396, employers should focus on accomplishing the following before January 1, 2018:
- Updating harassment and discrimination policies;
- Updating the dress code;
- Training employees to use proper terminology when discussing matters related to gender identity, gender expression and sexual orientation;
- Training employees to use a co-worker’s preferred name and pronoun;
- Training supervisors on how to identify and prevent harassment related to gender identity, gender expression and sexual orientation.
The Thomson Reuters Preventing Discrimination and Harassment for Managers – California training course covers all of California’s harassment training requirements for supervisors, including SB 396 and the DFEH guidance on transgender rights in the workplace.