Preventing Workplace Harassment, Discrimination, and Retaliation

 Employers cannot require employees to undergo, or provide proof of, any medical treatment or procedure, or provide any identity document, to use facilities designated for use by a particular gender. 31  Employers 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. 32  With respect to employee records, an employer will be permitted to use an employee’s gender or legal name as indicated in a government-issued identification document, but only if doing so is necessary to meet a legally mandated obligation. Otherwise, the employer must identify an employee in accordance with the employee’s gender identity and preferred name. Moreover, an employer cannot discriminate against an applicant based on the applicant’s failure to designate a gender on an applicant form, and it is unlawful for an employer to inquire about or require documentation or proof of an individual’s sex, gender, gender identity, or gender expression as a condition of employment. 33 Employers may still require employees to adhere to reasonable workplace appearance, grooming, and dress standards as long as the employer allows the employee to appear or dress consistently with the employee’s gender identity or gender expression. 34

Employers must allow employees to dress consistently with the employee’s gender identity and protect them from harassment and discrimination on that basis. 35

LCW Practice Advisor

In addition, harassing conduct of a sexual nature, whether motivated by hostility or by sexual interest, is deemed based on sex, regardless of the gender of the victim or the sexual orientation of the harasser. Thus, same-sex harassment and harassment by a homosexual employee against an employee of the opposite sex are also unlawful. 36 In other words, it is not a defense to say that the alleged harassing conduct was not motivated by sexual desire. 37

California also requires employers to provide reasonable accommodation for conditions related to pregnancy or childbirth if the employee so requests on the advice of her health care provider. 38

G. A GE The prohibition against discrimination and harassment based on age protects employees who are at least 40 years of age. 39 It also protects individuals over 40 from age-based stereotypes or generalizations about qualifications, job performance, health, work habits, or productivity of workers over 40.

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 13