California Transgender Employee Guidance

The California Department of Fair Employment and Housing recently issued a Guide on Transgender Employee Rights. Among other things, it provides guidance regarding “gender expression” as a class protected from discrimination and harassment under California law (defined as “person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”) The Guide notes that employers should not ask certain types of questions that seek the gender identity or sexual orientation of an applicant. It further states employers should not ask employees about surgery or their bodies since these questions would violate HIPAA (the Health Insurance Portability and Accountability Act). According to the Guide, dress codes should allow for dress that is suitable to an employee’s gender identity. The Guide also suggests that bathrooms, lockers and showers consistent with one’s gender identity should be provided, but that single stall bathrooms for those who desire privacy from transgender coworkers should also be provided, where possible.