Finding the Facts - Disciplinary and Harassment Investigation

Effective July 1, 2017, new FEHA regulations expand protections available for people who identify as transgender. Employers are now prohibited from seeking gender or sex-related information from applicants and employees, including seeking proof of an applicant’s or employee’s gender or gender identity. Employers also must honor an employee’s request to be identified by a preferred gender, name, or pronoun, including gender-neutral pronouns. Definitions have also been expanded to include employees who are currently transitioning or are perceived to be transitioning. The FEHA regulations were also revised to use more gender-neutral language. The revised regulations stress that employees have the right to use the restroom or locker room that correspond to their gender identity or expression. (See Appendix O) Federal Counterpart: The Equal Employment Opportunity Commission (“EEOC”), the federal agency that administers Title VII of the U.S. Civil Rights Act of 1964, issued a bulletin in 2015 proclaiming that Title VII’s prohibition against sex discrimination also forbids “employment discrimination based on gender identity or sexual orientation,” regardless of any contrary state or local law. Also in 2015, the EEOC issued an administrative decision that “sexual orientation” discrimination is discrimination based on sex and therefore violates Title VII. On April 4, 2017, the U.S. Court of Appeals for the Seventh Circuit (headquartered in Chicago) became the first federal appeals court to agree with the EEOC. In Hively v. Ivy Tech Community College of Indiana , 179 the Court concluded that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII.

Case Study A federal district court (in Nevada) held that a school district violated Title VII by prohibiting transgendered employee from using both men’s and women’s restrooms. 180 While federal district court decisions are not binding, very few courts have addressed the issue of transgender access to restrooms in the workplace. California passed AB1732 which provides that, commencing March 1, 2017, all single-user toilet facilities in any business establishment, place of public accommodation, or government agency to be identified as all-gender

Disciplinary and Harassment Investigations ©2019 (e) Liebert Cassidy Whitmore 115