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New Bathroom Protections for Transgender Persons

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Government Code 12940(a) prohibits discriminatory employment actions, including decisions regarding hiring, firing, compensation, and conditions based on a person's sex status. The legal definition of sex under the code includes "Gender expression", which means "a person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth." People who identify as transgender are thereby one of the classes of people protected from employer discrimination.

The California Fair Employment and Housing Council recently enacted additional protections for transgender persons. Effective July 1, 2017, new regulations take effect, which recognize and protect people transitioning, offers privacy protections, and bathroom protections.

Bathroom Protection

Regulations regarding working conditions have been expanded to allow for bathroom protections for transgender persons. Employers are legally required to provide "Equal access to comparable, safe, and adequate facilities shall be provided to employees without regard to the sex of the employee." The key word in the amended regulation is the word "safe." In addition, employers "shall permit employees to use facilities that correspond to the employee's gender identity or gender expression, regardless of the employee's assigned sex at birth."

Further, an employer may not require an employee to use a particular facility, nor can it ask for any medical proof or identification to use a particular facility. An exception to this where an employer may make a "reasonable and confidential inquiry of an employee for the sole purpose of ensuring access to comparable, safe, and adequate multi-user facilities."

Privacy

In addressing an employee's right to privacy, the regulations have added that: "To respect the privacy interests of all employees, employers shall provide feasible alternatives such as locking toilet stalls, staggered schedules for showering, shower curtains, or other feasible methods of ensuring privacy."

Transition Discrimination

The transitioning process is now legally recognized under California law as a protected process, during which an employer cannot make adverse employment regarding hiring, firing, compensation, or conditions. The regulations specifically protect, but is not limited to, the following: (1) changes in name and pronoun usage; (2) facility usage; (3) participation in employer-sponsored activities; (4) undergoing hormone therapy, surgeries, or other medical procedures.

Contact Moss Bollinger

California has put clear and unequivocal protections on the legal rights of transgender persons to privacy and safety in the workplace. Employers should be held to task when they violate these important rights. Since 2008, attorneys Ari Moss and Jeremy Bollinger have zealously advocated for the interests of employees who have fallen victim to discriminatory employment decisions. If your employer is not complying with the law, contact Moss Bollinger. We charge no up front fee and do not get paid unless you do. Call Moss Bollinger today at 800-249-1175 for a free consultation or reach us online.

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