FEHC Amends Regulations on Sex Discrimination
The California Fair Employment and Housing Council (“FEHC”) recently adopted amendments to the existing regulation on sex discrimination, which include transgender identity and expression. Some changes are language or definition related:
- “Gender at birth” has even changed to “gender assigned at birth.”
- “Opposite sex” has been replaced with “different sex.”
- The definition of “gender identity” has been expanded.
- A definition for “transitioning” has been added.
Additional revisions or additions to FEHC regulations cover employment topics of job applications, employee restrooms, fringe benefits, reference to employees using their preferred gender and name.
An employer may not require that applicants identify themselves on the basis of sex. However, this information may be requested on a voluntary basis. An employee’s misidentification of gender on an application is not a fraudulent misrepresentation, unless sex is a Bona Fide Occupational Qualification (BFOQ). Also, an employer may not discriminate based on an applicant’s failure to select a gender on an application form.
Employees must be permitted to use facilities that correspond to their gender identity or gender expression. An employer may not require medical proof prior to allowing use of the facility of the employee’s choice, but may make a confidential and reasonable inquiry of an employee to ensure appropriate access. All single occupancy facilities under the employer’s control must use gender neutral signage, such as Restroom, Unisex, Gender Neutral, or All Gender Restroom. Per the FEHC, facilities subject to the above rules include locker rooms, dressing rooms, dormitories, and other similar facilities.
It is unlawful for an employer to condition the availability of fringe benefits upon an employee’s sex, including gender identity and gender expression. Except whereas otherwise required by state law, an employer or other covered entity shall not require unequal employee contributions by similarly situated male and female employees to fringe benefit plans based on the sex of the employee, nor shall different amounts of basic benefits be established under fringe benefit plans for similarly situated male and female employees. It shall be unlawful for an employer or other covered entity to have a pension or retirement plan that establishes different optional or compulsory retirement ages based on the sex of the employee.
Preferred Name and Pronoun
An employer must use the employee’s preferred gender, name, and/or pronoun, including gender neutral pronouns if the employee so requests. Employers may be liable under the Fair Employment and Housing Act for failure to do so. However, employers may use the gender and legal name indicated on government issued identification when necessary to meet a legally mandated obligation. Fringe Benefits. Employers may not condition the availability of fringe benefits on sex, including gender identity or gender expression. Practical Implications Employers should take steps now to ensure that their applications, policies, procedures and facilities are legally current. Employers are encouraged to consult with counsel to ensure compliance with all applicable laws.
Questions about the California Fair Employment and Housing Regulations?
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