California Transgender Rights in the Workplace Posting Update
The California Transgender Rights in the Workplace posting has been updated to clarify employees’ rights to use restroom and locker room facilities corresponding to a person’s gender identity and gender-neutral facilities. Specifically, the section of the posting that answers the question, “What are obligations of employers when it comes to bathrooms, showers, and locker rooms?” has been updated. The posting explains that:
- All employees have a right to safe and appropriate restroom and locker room facilities.
- This includes the right to use a restroom or locker room that corresponds to the employee’s gender identity, regardless of the employee’s assigned sex at birth.
- In addition, where possible, an employer should provide an easily accessible unisex single stall bathroom for use by any employee who desires increased privacy, regardless of the underlying reason.
- Use of a unisex single stall restroom should always be a matter of choice. No employee should be forced to use one as a matter of policy or due to harassment in a gender-appropriate facility.
Additionally, the law requires employers who provide single-occupancy facilities to use gender-neutral signage for those facilities, such as “Restroom,” “Unisex,” “Gender Neutral,” “All Gender Restroom,” etc. (2 CCR § 11034). This signage requirement does not apply to nonwater carriage disposal facilities in those workplaces covered by California Code of Regulations, title 8, sections 1526 (construction), 3364 (general industry), 3457 (agricultural operations), and 5192 (hazardous waste operations and emergency response).
Fair Employment and Housing Act Protected Characteristics
The legal requirements for restrooms and locker room facilities derive from regulations implementing the California Fair Employment and Housing Act (Cal. Govt. Code sections 12900-12996). The Act prohibits discrimination and harassment in the terms, conditions, or privileges of employment on the basis of a protected characteristics. Sex, gender identity and gender expression are among the Act’s protected characteristics. (Cal. Govt. Code § 12940). This protection extends to individuals who identify as “transgender,” a general term that refers to a person whose gender identity differs from the person’s sex assigned at birth. (2 CCR § 11030).
In general, employers are prohibited from making inquiries that, directly or indirectly, identify an individual on the basis of sex, gender, gender identity or gender expression. (2 CCR § 11034). However, 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. (Id.)