Privacy Issues in the Community College Workplace

According to the DFEH in guidance provided on Transgender Right in the Workplace, “unless an employer can demonstrate business necessity, each employee must be allowed to dress in accordance with their gender identity and gender expression.” 562 “Transgender or gender non- conforming employees may not be held to any different standard of dress or grooming than any other employee.” 563 A police department has been held to be able to establish hair grooming standards for male members of the police force. In Kelley v. Johnson , 564 the court held that a county’s hair grooming regulation for its police officers was not so irrational that it could be branded arbitrary and thus a deprivation of a police officer’s liberty interest in the freedom to choose his own hairstyle. Thus, an employer may enact certain grooming standards if they have a rational connection to the organizational needs of the workforce, as well as the protection of persons and property. Nonetheless, caution is advised in enacting such policies on this basis. In one case, the court determined that a fire department’s ban on facial hair discriminated against persons with “folliculitis barbae,” or razor-bumps, a handicap. The department’s safety rationale, that facial hair could cause a mask to leak, was insufficient evidence of a safety risk. According to the court, a reasonable accommodation would allow wearing of a beard and required frequent tests of a firefighter’s safety mask. 565 Education Code section 35183 provides that a school district governing board may adopt reasonable dress code regulations prohibiting students from wearing gang-related apparel if deemed necessary for health and safety purposes. 5. R ESIDENCY R ESTRICTIONS An employer has limited authority to regulate/restrict where its employees reside pursuant to Article XI, Section 10, Subdivision (b) of the California Constitution which provides that while a local agency may not require that employees be residents of the city or county, it may require employees to reside within a reasonable distance of their place of employment.

International Ass’n of Fire Fighters Local 55 v. City of San Leandro, 566 An appellate court held that a city requirement that fire department personnel reside within 40 miles from a fire station was not so unreasonable as to be constitutionally defective, even though it did not provide for consideration of the firefighters’ individual travel time from their residences.

6. L ANGUAGE

Under FEHA, Government Code Section 12951, employers are barred from adopting or enforcing a policy that prohibits the use of any language in the workplace unless: (i) the policy is justified by business necessity; and (ii) the employer provides the employees with adequate notice of the policy and the consequences of violating the policy.

Privacy Issues in the Community College Workplace ©2019 (c) Liebert Cassidy Whitmore 169