Employment Law

FEHC Finalizes Regulations Regarding Transgender Workplace Protections and the Consideration of Criminal History in Employment Decisions

By: Nadia P. Bermudez

Effective July 1, 2017, the Fair Employment and Housing Council (FEHC) issued new regulations impacting the California workplace. On one front, the FEHC issued regulations containing new legal definitions and protections regarding transgender employees in the workplace. The FEHC also finalized regulations regarding the use of criminal records by employers in hiring and other employment decisions.

Photo of Nadia P. Bermudez
Nadia P. Bermudez

Protections for Transgender Employees

The FEHC regulations include revised and additional legal definitions. For example, “gender expression” now includes a person’s “gender-related appearance or behavior, or the perception of such appearance or behavior, whether or not stereo-typically associated with the person’s sex assigned at birth.” “Gender identity” means each person’s “internal understanding of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.”

A new definition was added to define “transitioning” as a: “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.” Further, “[t]his process may include, but is not limited to, changes in name and pronoun usage, facility usage, participation in employer-sponsored activities (e.g. sports teams, team-building projects, or volunteering), or undergoing hormone therapy, surgeries, or other medical procedures.”

The regulations emphasize a requirement that employers allow employees to “perform jobs or duties that correspond to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth.”

The regulations also restrict an employer’s ability to question or make inquiries about the employee’s gender. For example, employers cannot require employees to provide proof or other documents to use facilitates designated for a particular gender.

The regulations may also impact workplace policies regarding dress codes. The new regulations resulted in the deletion of language regarding the parameters of “lawful” grooming or dress standards. The section was replaced with language regarding “unlawful” standards which “impose upon an applicant or employee any physical appearance, grooming or dress standard which is inconsistent with an individual’s gender identity or gender expression, unless the employer can establish business necessity.”

Use of Criminal History

Joining San Francisco, earlier this year Los Angeles implemented a so-called “Ban-the-Box” ordinance this year, detailed in an earlier article by the firm.   These rules restrict an employer from inquiring about and using criminal background history when making employment decisions. Additionally, there is pending legislation to impose a state-wide ban on the review of criminal history before an offer of employment has been made.

The new FEHC regulations do not require an outright ban on seeking criminal history before offers of employment are made. Instead, the FEHC regulations focus on creating potential liability for employers in the event that such criminal history review creates an adverse impact on the workforce. In doing so, the regulations mirror the EEOC’s 2012 Enforcement Guide regarding the use of criminal records for hiring and other employment decisions. If an employee or candidate can prove that an employers’ review of criminal history causes an “adverse impact” – via statistics or other evidence – the burden shifts to the employer to justify its policy by demonstrating that the policy is “job-related and consistent with business necessity” and tailored to the specific circumstances of the job.

Finally, the new regulations allow applicants and employees an opportunity to present evidence that criminal background information is incorrect before the employer takes adverse action against the applicant or employee. Further, if an applicant or employee can show that the record is incorrect, that criminal record cannot be used for employment-related decisions.

Takeaways

In light of these regulation updates and the constantly changing compliance landscape, employers should regularly review their personnel manuals and hiring practices to ensure that their policies are lawful. Employers are also encouraged to learn and use correct legal terms in referencing an employee’s gender, gender expression or transitioning. Finally, employers should carefully evaluate employment decisions relating to use of criminal history and be prepared for a possible change in California law if a state-wide ban on pre-offer criminal background checks is enacted.

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