Updated Protections for Transgender People
Effective July 1, 2017, California’s Department of Fair Employment and Housing (DFEH) enacted expanded regulations to further protect transgender individuals.
Under the regulations, gender expression is defined as someone’s gender-related behavior or appearance, or perceived behavior or appearance, regardless of behavior and appearance stereotypes associated with the individual’s sex assigned at birth.
Employers cannot discriminate against a person who has transitioned, is in the process of transitioning, or may be transitioning.
The law defines transitioning as “the process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth.”
Activities potentially associated with transition include:
- Name change or different pronoun (s/he) use
- Use of different facilities
- How to engage in office-related activities
- Beginning hormone therapy, surgery or other related medical procedures
You can no longer request an employee to disclose information related to his/her sex, including gender, gender expression, or gender identity. Nor can you seek documentation or any other form of proof on these matters.
If you haven’t already, review your policies ASAP to ensure compliance with the new regulations. You’ll also need a comprehensive transgender policy that addresses: gender transition, legal name change, personal pronouns, restroom and locker room use, privacy and medical records, and training.
- Permit employees to use facilities (i.e., bathrooms, locker rooms) that correspond with their gender identity or gender expression, not the sex assigned to them at birth.
- Label single-occupancy facilities with gender neutral terms such as “Unisex,” “Gender Neutral” or “All Gender Restroom.”
- Allow employees to carry out job duties that correspond with their gender expression or gender identity, not the sex assigned to them at birth.
Written Notice Requirement for Victims of Domestic Violence, Sexual Assault & Stalking
California employers with 25+ employees now need to provide written notification for new hires and current employees (upon request) that informs them about their rights in domestic violence, sexual assault, or stalking situations.
This sample form from California Labor Commission meets the new notification requirements.
Rights to Keep in Mind
- Time Off — Employees may take unpaid leave or use paid time off benefits, such as vacation, PTO, personal leave, or paid sick leave.
- Freedom From Discrimination & Retaliation — Do not discharge, discriminate or retaliate in any way against employees who are the victims of domestic violence, sexual assault, or stalking and who take time off to obtain a restraining order, appear in court, or seek other forms of relief. If you take adverse action against an employee in violation of sections 230 or 230.1, the employee is entitled to reinstatement and reimbursement for lost wages and work benefits.
- Accommodations/Interactive Process — As an employer, you’re required to engage in an interactive process that’s timely and confidential. You must also provide reasonable accommodations which may include “safety measures, including a transfer, reassignment, modified schedule, changed work telephone, changed work station, installed lock, assistance in documenting domestic violence, sexual assault, or stalking that occurs in the workplace, an implemented safety procedure, or another adjustment to a job structure, workplace facility, or work requirement.”
- Complaint Filing — You must let employees know that they have the right to file a complaint with the California Division of Labor Standards Enforcement if they feel that they have experienced retaliation or discrimination.
New Guide on Workplace Harassment
We mentioned it before, but it bears repeating, the California Department of Fair Employment and Housing issued a new California Workplace Harassment Guide that became effective May 2, 2017.
This guide is intended to help employers prevent and handle harassment, discrimination, and retaliation in the workplace. Employers are expected to review and abide by the guide to correct wrongful (harassing, discriminatory, retaliatory) behavior in the workplace.
KPA clients can access the The California Workplace Harassment Guide in the Toolkit/Documents/Toolkit Guides section within HRDrive.
Review Employee Schedules to Ensure Compliance With Day of Rest Rule
California employees are entitled to 1 day of rest out of 7, but up until recently the state labor code wasn’t clear on how measure this time period. The California Supreme Court stated that the day of rest must be given during a workweek, not on a rolling basis for a consecutive seven-day period.
- With this ruling, employers gained more clarification and flexibility for scheduling employees. Employees must average at least 1 day of rest for every 7 worked over the course of a calendar month.
- Part-time employees are exempt if they never work more than 6 hours in any one day of a workweek.
- If employers are coercing employees not to take a day of rest, they are likely to be liable. However, if an employee chooses not to take a day of rest, the employer may not be liable.
San Francisco Bans Salary History Questions
Last month, San Francisco Mayor Ed Lee signed the Parity in Pay Ordinance into law. Its provisions will take effect in July 2018. Penalties for violations will imposed beginning July 2019.
Why was this law established?
Asking job applicants for their salary history and relying on their current or past salaries to set their pay rates contributes to the gender wage gap. As a result, women in San Francisco currently earn $0.84 cents for every dollar men are paid, and women of color earn even less.
Therefore, this law is intended to combat the gender-based pay inequities that often plague a woman’s career.
Who is affected?
The law applies to all employers, including city contractors and subcontractors. It will also pertain to job applicants — even those applying for temporary, contingent, seasonal, or part-time work.
What are the requirements?
Under the law, employers will not be able to:
- Ask about a job applicant’s current or prior salaries.
- Rely on an applicant’s salary history to determine whether or not to make a job offer or what salary to offer.
- Retaliate against an applicant for refusing to disclose salary history.
- Release a current or former employee’s salary history without written authorization —unless disclosure is required by law or the information is publicly available or part of a collective bargaining agreement.
Should a job candidate voluntarily provide prior salary information, employers are allowed to consider it. Employers and hiring managers can also have a conversation with job candidates about salary expectations, but it needs to be handled in such a way that it doesn’t come across as soliciting salary history information or pressuring candidates to disclose such information.
Prior to the law going into effect, employers will need to inform employees about it. The Office of Labor Standards Enforcement (OLSE) will provide more details about the notice and posting requirement. KPA will keep you up-to-date as details develop.