New DFEH Guidance Clarifies California Employers’ Responsibilities for Providing Restroom Access to Transgender Employees

Employers in California who staff transgender employees are required to allow these workers access to the restroom facilities associated with their gender identity, a newly issued guidance from the Department of Fair Employment & Housing (DFEH) explains.

Affirming previously issued federal guidelines¹, the DFEH guidance also recommends that employers provide individual or unisex restrooms, whenever feasible, to promote privacy for all employees and avoid discriminatory practices.

Explaining the DFEH’s stance on restroom access for transgender employees, DFEH Director Kevin Kish has pointed out that:

Under California law, all employees have the right to use restroom and locker room facilities that correspond to their gender identity, regardless of their assigned sex at birth.

To clarify the details of the new DFEH guidance, below we have answered some of the most commonly asked questions about it. If, however, you currently need answers about your options for justice after being discriminated against by an employer, don’t hesitate to contact an experienced Los Angeles discrimination attorney at the Azadian Law Group, PC.

Answers about the New DFEH Guidance & Protections for Trans Employees

Q – Can employers ask about employees’ sexual orientation and/or gender identities?

A – Not legally, as the law prohibits employers from questioning employees (including prospective employees) about their bodies, gender identities, and/or sexual orientation. Additionally, employers cannot question employees about their plans for surgery or gender transition.2

Employers can, however, ask about their abilities to perform certain tasks (related to a specific position/job opening), their employment history, and other non-discriminatory issues.

Q – Per the new DFEH guidance, are California employers required to provide transgender employees with access to areas other than restrooms?

A – If an employer provides locker rooms and/or shower facilities, then yes, it is also required to allow transgender employees to access the facilities corresponding to their gender identities. While offering unisex restrooms may be a solution for some employers, the DFEH has pointed out that:

No employee should be forced to use [a unisex restroom] either as a matter of policy or due to continuing harassment in a gender-appropriate facility.

Q – Do transgender employees in California have to be at a certain stage in their transition in order to be protected by the DFEH guidance?

A – No. The legal protections offered by the DFEH guidance extend to all California workers who identify as transgender, regardless of where they may be in the process of socially and/or physically transitioning.

Notably, the DFEH has explained that “an employer may not condition its treatment or accommodation of a transitioning employee on completion of a particular step in the transition.”

Contact a Los Angeles Discrimination Attorney at the Azadian Law Group, PC

If you have been the target of any type of workplace discrimination and/or harassment, contact a Los Angeles discrimination attorney at the Azadian Law Group, PC, for a free case to review to find out more about your options for recovery and justice.

Call us at 626-449-4944 or send us an email via this contact form to find out more about how we can help you. If you choose to move forward with us, you will not have to pay us any legal fees until or unless compensation is secured for your case.
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1: Issued by the EEOC and OSHA

2: Per the Health Insurance Portability & Accountability Act (HIPAA)