California Employers Must Accommodate Transgender Employees

by Brenna Johnson

Even as 19 states considered restricting access this year to restrooms, locker rooms and related facilities based on the user’s biological sex, California has led the country with a series of laws protecting transgender rights in housing, employment and on school campuses.

In 2003, Gov. Gray Davis signed Assembly Bill 196, which expanded the definition of sexual discrimination to include gender identity. That includes protecting an employee’s right to use the bathroom that corresponds with his or her gender identity, and prohibiting employers from forcing employee to wear a uniform that does not conform to their gender identity.

In 2013, Gov. Jerry Brown signed the first law in the nation allowing transgender youth to choose the bathrooms they want to use and to participate in boys’ or girls’ sports based on the gender with which they identify.

The Obama administration’s attempt this year to follow suit and permit transgender students to use the bathroom of their choice was blocked by U.S. District Court Judge Reed O’Connor of the Northern District of Texas, who issued a nationwide injunction against the administration’s bathroom guidelines.

However, only one state – North Carolina – has successfully enacted legislation restricting transgender individuals’ access to the bathroom they choose to use. House Bill 2 requires transgender people to use public restrooms corresponding with the sex on their birth certificate, not their gender identity.

The bill prompted substantial backlash. The U.S. Department of Justice Civil Rights Division filed suit against the law. PayPal scrapped a plan to expand to Charlotte, and the NBA pulled its All-Star game from the state. In addition, more than 90 prominent business leaders from companies such as Apple, Salesforce, Marriott, Pfizer and Levi Strauss called on Gov. Pat McCrory, who signed the legislation, to repeal the law.

McCrory subsequently lost his re-election bid to Roy Cooper, who as attorney general said he would not defend HB2 in court. The bill is likely to be repealed once Cooper takes office.

This year, California’s governor took his efforts one step further by signing AB 1266, requiring all single-stall toilets in California to be identified as gender neutral. That law takes effect March 1, 2017 and applies to business establishments, government buildings, and public accommodations.

Meanwhile, federal courts, the U.S. Department of Justice, and the U.S. Equal Employment Opportunity Commission (EEOC) all have concluded that discrimination because a person is transgender or gender non-conforming constitutes sex discrimination. So what rights does a transgender employee have?

  1. To be treated with respect and not be harassed. Harassment is defined as jokes or derogatory comments about transgender people; intentional use of the wrong name or pronouns; or invasive, disrespectful personal questions
  2. The right not to be fired or refused a job or promotion because of a gender transition
  3. Equal access to a common restroom that corresponds with the employee’s gender identity, or the right to use a unisex single-stall restroom if available. However, use of a single-stall restroom cannot be mandated if a common restroom is available. The employer cannot request proof of surgery or any other medical procedure to allow bathroom access.

It also is important to be aware of your duties as an employer:

  1. Make sure your antidiscrimination and harassment policies expressly include “gender,” “gender identity,” and “gender expression” in the list of protected categories.
  2. Consider updating dress code policies, as well, to make them gender neutral.
  3. Update training programs and materials to address LGBT-specific issues, including usage of pronouns and definitions of terms.
  4. Create guidelines to help an employee undergoing transition. Issues include who is charged with helping a transitioning employee manage his or her workplace transition, what a transitioning employee can expect from management, and what management’s expectations are for staff and transitioning employees.
  5. Develop procedures for implementing transition-related workplace changes, such as adjusting personnel and administrative records.

Brenna Johnson is an Employment Law Attorney, and Workplace Investigator. Brenna helps small businesses navigate California’s employment and labor laws, as well as helping employees whose rights have been violated in the workplace.