Employers who maintain a dress code need to enforce it in a non-discriminatory manner. Per the Guidance, this means that transgender persons must be allowed to dress in the same manner as other persons of the gender with whom they identify.  Further, the transgender individual's compliance with a dress code may not be "judged more harshly" by the employer.

Bathrooms, Showers and Locker Rooms

 

The new Guidance state's the agency's opinion  that all employees have the right to use a restroom or locker room that corresponds to the employee's gender identity, regardless of the employee's biological sex or gender expression. Where possible, the Guidance recommends that an employer should provide an easily accessible unisex single stall restroom for voluntary use by any employee for any reason. DFEH further states that this private restroom should be available to use by any employee who wants increased privacy, regardless of the underlying reason. DFEH suggests that a restroom of this type should be available to be used by an employee who does not want to share a restroom with a transgender co-worker. However, the Guidance also cautions that even if the employer provides a unisex restroom, the use of that restroom should be a matter of choice and that no employee should be forced to use it as a matter of policy or due to continuing harassment in a gender appropriate facility.

Significantly, the DFEH developed the Guidance in response to a lawsuit involving a transgender job applicant who was offered employment on the condition that the applicant agree to use shower, locker room and restroom facilities that corresponded to the applicant's biological sex until the applicant underwent sex reassignment surgery. As part of a settlement, the employer agreed to adopt new policies to allow employees access to facilities that correspond to their gender identity. DFEH considered the employer's restroom demand to be discriminatory because sex reassignment surgery is not a necessary step to a person's complete gender transition.  Along those same lines, the Guidance emphasizes that the steps to complete a gender transition vary from person to person and may emphasize social transitions, such as telling one's friends or using a different name and pronouns, rather than physical transitions. In fact, a great many transgendered individuals never elect to undergo gender reassignment surgery, whether due to financial considerations or other personal reasons. Employers should thus avoid overemphasizing the role of surgery in the gender transition process and stay away from terms such as "sex change surgery" that can be perceived as derogatory.

What Should You Do?

 

In light of this Guidance, employers should consider doing some or all of the following: (1) make sure that those tasked with interviewing job applicants are aware of questions to be avoided during the interview process and become familiar with the proper terminology if the subject of the applicant's gender identity should arise; (2) review dress code policies to make sure that they take transgender rights into account and that the policies are enforced evenhandedly; (3) allow employees to dress in accordance with their gender identity/expression; (4) review any bathroom, shower, and locker room policies, and ensure managers are properly complying with the anti-discrimination requirements; (5) assess whether  it would be possible to provide an easily accessible unisex single stall restroom in the workplace to get ahead of issues that may arise in the future; and (6) consider a training program for managers and perhaps the entire workforce so that managers and co-workers of transgender employees do not unwittingly say or do things that may be  deemed hostile or offensive.