New regulations taking effect regarding transgender rights in the workplace
Jennifer Woo Burns
Jasmin B. Bhandari
The Fair Employment and Housing Council has approved amended regulations pertaining to gender identity and transgender individuals in the workplace. These regulations take effect July 1, 2017. Some of the amendments merely clean up existing language (for example, references to “both sexes”) to allow broader and more neutral gender references. Other amendments impose additional obligations/prohibitions for employers, such as:
- Permitting employees to use facilities that correspond to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth.
- Requiring that single-occupancy facilities have gender-neutral signage, such as “Restroom,” “Unisex,” “Gender Neutral,” “All Gender Restroom,” etc.
- Providing feasible privacy-protective measures such as locking toilet stalls, staggered schedules for showering, shower curtains, or other feasible methods of ensuring privacy. However, the employer may not require an employee to use a particular facility.
- Not requiring employees to undergo, or provide proof of, any medical treatment or procedure, or provide any identity document, to use facilities designated for use by a particular gender.
- Not imposing upon an applicant or employee any physical appearance, grooming or dress standard that is inconsistent with an individual's gender identity or gender expression, unless the employer can establish business necessity.
- Not inquiring about or requiring an applicant or employee to directly or indirectly identify on the basis of sex, including gender, gender identity, or gender expression, unless a permissible defense applies or on a solely voluntary basis.
- Abiding by an employee request to be identified with a preferred gender, name, and/or pronoun, including gender-neutral pronouns.
- Not discriminating against an applicant based on the applicant’s failure to designate male or female on an employment application form.
- Abiding by an employee request to be identified in accordance with a certain gender identity and name, except to the extent that the employee’s gender or legal name as indicated in a government-issued identification document is necessary to meet a legally-mandated obligation
- Not discriminating against or denying employment to an individual based wholly or in part on the individual’s sex, gender, gender identity, gender expression, or due to the employee transitioning, having transitioned, or perceived to be transitioning.
Additionally, as we previously reported, employers are also required to alter their designation of single-user restrooms. Specifically, effective March 1, 2017, all single-user toilet facilities in any business establishment must be identified as all-gender toilet facilities by compliant signage. For purposes of this law, “single-user toilet facility” means a toilet facility with no more than one water closet and one urinal with a locking mechanism controlled by the user. The signage must be wall-mounted and contain the geometric symbol that identifies the restroom as gender-neutral, which is a triangle superimposed on top of a circle. The signage must also be tactile (can be read by touch, including raised letters and duplicative Braille) and indicate that the facility is a unisex or all-gender restroom.
Employers should review and update their policies and practices to comport with these new regulations. Also, a facilities review should be conducted as pertains to employee restrooms and locker rooms. Your department managers and supervisors may have additional useful information regarding individual employee situations that may invoke some of these obligations, and they should be trained and educated on this newly emerging area.