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California Issues Guidance on Transgender Issues in the Workplace
On February 17, 2016, the California Department of Fair Employment and Housing (DFEH) issued guidance on transgender rights in the workplace. California (under FEHA) prohibits unfair employment practices against individuals of race, religion, color, national origin, sex, gender, any other related characteristics. FEHA also extends protections to transgender individuals, defining "gender expression" as a "person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth." (Gov. Code 12926(r)(2))
The guidance reminds employers that they cannot ask applicants discriminatory questions during an interview, including questions that might reveal an applicant's sexual orientation, gender identity or marital status. Furthermore, the state suggests that questions regarding an applicant's body or potential surgery may implicate the Health Insurance Portability and Accountability Act (HIPAA).
Additionally, the guidance appears to provide that transgender individuals also have the same right to safe and appropriate restroom and locker facilities. In other words, a transgender individual should be able to use a restroom or locker room that corresponds to their gender identity. Employers may use unisex single occupant bathrooms in lieu of a multi-occupant gender specific bathroom.
Though the new guidance does not appear to be binding in authority, the guidance may provide some assistance to employers addressing workplace issues.
A copy of the guidance, including a state article on the topic are provided below. Please reference the web-links.
http://www.dfeh.ca.gov/res/docs/Publications/Brochures/2016/DFEH163TGR.pdf