Employment Updates Regarding Transgender Employees by Jacqueline Tate-Naghi

Three recent laws have come into effect as of July 1, 2017.

Rights of Victims of Domestic Violence, Sexual Assault and Stalking [California]
Transgender Identity and Expression [California]
San Francisco Minimum Wage [City and County of San Francisco]

The first one – Rights of Victims of Domestic Violence, Sexual Assault and Stalking – addresses employer notice and time off. Employees who are victims of domestic violence, sexual assault or stalking may need time off for legal proceedings, such as obtaining a restraining order or for medical treatment. Employees are entitled to use mandatory paid sick days for these purposes. Employers have various obligations related to providing such leave and are required to provide this information to new workers when hired, and to other workers who ask for it.

The second one – Transgender Identity and Expressions – further expands the Fair Employment and Housing Act’s (FEHA) role in preventing discrimination in employment and housing on the basis of gender identity. The new regulations specfically protect people who identify as transgender and provide protection on the basis of both gender identity and gender expression. The regulations describe some new policies that employers must implement, including the following:

Restroom Facilities
Employers are now required to provide equal access to facilities regardless of the sex of the employee. Employees must be permitted to use facilities that correspond to the employee’s gender identity or expression. The regulations also address signage, advising that employers must use gender-neutral signage for single-occupancy facilities under their control and cannot require any proof of sex or gender for an employee to use a particular facility. Note that a prior law, effective March 1, 2017, requires all single-user facilities to be identified as “all-gender.”

The new regulations add a definition of “transitioning” and prohibit discriminating against an individual who is transitioning, has transitioned, or is perceived to be gender transitioning. “Transitioning” is defined as a process in which an individual begins living as the gender with which they identify and can include changes in name usage, participation in employer-sponsored activities, undergoing hormone therapy, etc.

Dress Standard
An employer cannot impose a dress standard that is inconsistent with an employee’s gender identity or expression in the absence of a business necessity.

Preferred Name and Identity
The new regulations specify that employers must honor an employee’s request to be identified by a preferred gender, name or pronoun. Employers can only insist on using an employee’s legal name or gender if it is otherwise required to meet a legally-mandated obligation.

An employer cannot inquire or require documentation on sex, gender, gender identity, or gender expression as a condition of employment.

The third one – San Francisco Minimum Wage – provides for an increase to the minimum wage in the City and Country of San Francisco. Beginning July 1, 2017, all employers must pay employees (including temporary and part-time employees) who work in San Francisco at least $14.00 per hour.