For California employers, the Court's decision has little practical effect, as California law already prohibits employment discrimination based on sexual orientation, gender identity, gender expression, or against an individual who is transitioning, has transitioned, or is perceived to be transitioning. In this regard, the Court's ruling reinforces the policy justifications that motivated California to provide these protections years ago. Indeed, California regulations expressly define many of the protected classifications in Code Regs. § 11030 :
- Gender Expression: "a person's gender-related appearance or behavior, or the perception of such appearance or behavior, whether or not stereotypically associated with the person's sex assigned at birth."
- Gender Identity: "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."
- Transgender: "a general term that refers to a person whose gender identity differs from the person's sex assigned at birth. A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth. A transgender person may or may not identify as 'transsexual.'"
- Transitioning: "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. This 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."
Aside from statutory definitions, California employers should be mindful of the nuances in California law that involve LGBTQ employees and applicants, including:
- The Gender Recognition Act: This law creates a non-binary gender marker for California birth certificates, drivers' licenses, and identity cards.
- Posting: Employers are required to display a poster regarding transgender employees' rights in the workplace. Gov't Code § 12950. The Department of Fair Employment and Housing publishes an approved poster, accessible on its website.
- Training: As part of an employer's obligation to provide anti-harassment training to employees, employers must also include training regarding harassment based on gender identity, gender expression, and sexual orientation. Gov't Code § 12950.1
- Restrooms: Employers are required to allow employees to use bathrooms that correspond with their gender identity or gender expression. Single-occupancy facilities must also use gender-neutral language. Code Regs. § 11034(e). Similarly, the Equal Restroom Access Act requires that all single-occupancy restrooms be available to everyone, including a visual designation that it is an all-gender facility.
- Policies: Employers are prohibited from maintaining grooming or dress code policies that force employees to diverge from their gender identity or gender expression. Code Regs. § 11034(g).
- Preferred Name: If an employee requests to be identified with a preferred gender name or pronoun (including gender-neutral pronouns), an employer must comply with the employee's request, unless use of the gender or legal name is required by law. Code Regs. § 11034(h).
Finally, employers should also review their workplace policies, including anti-harassment and discrimination policies, to ensure that they are written in compliance with the Fair Employment and Housing Act and associated regulations.
