California Senate Bill 396

In California, the Fair Employment and Housing Act prohibits harassment and discrimination because of gender identity, gender expression, transitioning, or sexual orientation.

With the passage of Senate Bill 396, all companies with 50 or more employees are now required to include training on these protected groups as part of their mandatory 2-hour sexual harassment training for supervisors.

Definitions

• Gender expression is a person’s gender-related appearance or behavior.  Gender expression may be stereotypically male or female, a combination of both, or may not conform to any gender.
• Gender identity is a person’s internal understanding of their gender…which may be male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth or transgender.
• Transgender refers to persons whose gender identity differs from their sex assigned at birth. A transgender person may or may not have a gender expression that is different from the social expectations of the sex they were assigned at birth.
• Transitioning is the process in which an individual begins living as the gender by which they identify. The law protects employees who are transitioning, have transitioned, or are perceived to be transitioning to a gender other than the one assigned at birth.
• Sexual orientation is heterosexuality, homosexuality or bisexuality.

Harassment or Discrimination by Supervisors

The following supervisor conduct is illegal under California law:

• Engaging in harassment or discrimination that affects tangible employment actions such as hiring, firing, demotion, or promotion. For example, refusing to promote a woman for no other reason than the fact that she does not dress stereotypically female or terminating the employment of a worker who is undergoing or planning sex reassignment surgery.
• Requiring employees to tolerate harassment as a condition of employment. For example, a warehouse manager telling his employees that “they will simply have to ignore homophobic slurs from their co-workers because they are commonplace in blue collar jobs.”
• Harassing or discriminating against employees because of a perception which is not true.  For instance, a manager choosing not to give a job assignment to a woman because he thought she was a lesbian.  Her sexual orientation is irrelevant in this scenario…she is protected either way.
• Making employment decisions or comments based on sex stereotypes. For example, refusing to hire job candidates whose gender identity is female for a job that requires heavy lifting solely because of gender stereotypes.

Hostile Environment Harassment

• Hostile Environment harassment occurs when the conduct unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive working environment.
• Supervisors have the dual responsibility of avoiding harassing behavior themselves while watching for it in the employees they manage.
• The harasser and victim can be co-workers, but harassment can also occur between employees and non-employees such as contractors, consultants, delivery persons, vendors or even customers.
• Harassment can occur anywhere that employees represent their organizations such as work celebrations, dining with clients, conferences, trade shows, sales calls and charity events.
• Harassment can occur in person, on the phone, through text messages, instant messages, emails, or through social networking sites.
• Hostile Environment harassment can affect anyone in the workplace…even employees who were not directly harassed but were bystanders to illegal conduct could be victims.

Examples of Inappropriate Behavior

• Using demeaning or offensive names or the use of slurs or epithets.
• Telling insensitive jokes that are demeaning or degrading.
• Using a customer’s gender preference as a factor when assigning job duties to employees.
• Making derogatory comments about the traits or legal rights of a protected group, such as "A man should not be wearing a dress.”
• Excluding or isolating co-workers from work-related activities and assignments. For example, assigning a transgender person exclusively to job assignments that do not involve customer interaction when co-workers in the same position work with customers on a regular basis.
• Viewing offensive websites or using social networking sites to harass co-workers. For instance, making disparaging comments about gender expression on a co-worker’s social media pages or viewing anti-gay websites in full view of co-workers.

Other Mandates Under California Law

• Employees must be allowed to use restroom or locker room facilities that correspond to their gender identity or gender expression irrespective of their assigned sex at birth.
• Employers must provide methods such as lockable toilet stalls, individual schedules for showers, shower curtains or any other appropriate systems to ensure privacy for employees in their facilities.
• Employers must designate single-occupancy restrooms with gender-neutral signage such as “unisex” or simply “restroom.”
• Employers must allow employees to groom and dress according to their gender identity.
• If an employer assigns gender-specific uniforms, employees must be allowed to wear the uniform corresponding to their gender identity. 
• When employers have dress codes or grooming standards, transgender or gender non-conforming employees must not be held to different standards than other employees.
• Employees must be allowed to participate in employer-sponsored activities corresponding to their gender identity including sports teams, team-building exercises, and volunteering.
• Employees in California have the right to be identified by the name of their choice and with pronouns that reflect their gender identity.
• Employers must ensure that all employees follow this pronoun and name preference or face liability in court. 
• Refusal to address co-workers with their preferred name and pronoun is considered illegal harassment and subject to disciplinary action. 
• Employers may use legal names and genders on government documents when obligated by law.
• Employees must be permitted to perform jobs or duties that correspond to their gender identity or gender expression, irrespective of the employee's assigned sex at birth.
• Employers must work to limit the number of jobs where a person’s sex is the determining factor for employment.
• Employers may NOT require any proof of transitioning or gender identity before granting employee rights guaranteed by law.
• Employers may only communicate with employees about their gender identity, gender expression or transitioning if the employee initiates the conversation to discuss gender-related working conditions. 
• Employers may make a confidential inquiry of an employee for “the sole purpose of ensuring access to comparable, safe, and adequate multi-user facilities.” - 12950.7 (D)
• The law prohibits employers from asking about or requiring documentation as proof of an individual’s sex, gender, gender identity, or gender expression as a condition of employment.
• Discrimination against an applicant who fails or declines to mark male or female on an application form is expressly prohibited.
• Employees have the right to report harassment or discrimination to the Department of Fair Employment and Housing for up to one year from the first instance of misconduct.
• The DFEH will investigate the complaint and help with a settlement or provide legal assistance if necessary. 
• Victims may seek help privately through civil court and do not lose that right by filing a complaint with the DFEH.
• Victims of harassment or discrimination have the right to receive compensatory and punitive damages.
• Independent contractors are entitled to the same harassment and discrimination rights as employees.
• Employers are required to display a poster developed by the DFEH regarding transgender rights in a prominent and accessible location in the workplace.

Retaliation

• Retaliating against a co-worker for filing a harassment complaint is illegal under California and federal law.
• Examples of retaliation include layoffs, negative performance reviews, job transfer, loss in pay, benefits or overtime, less desirable job assignments, bullying, demotions, and unwarranted discipline to name just a few.

Consequences

• Employers and their supervisors must take reasonable steps to prevent harassment from occurring.
• Supervisors who fail to prevent harassment or who engage in harassment themselves can be found personally liable in court for large monetary judgments and face disciplinary action up to and including termination.

In Conclusion

In California, harassment, and discrimination on the basis of gender identity, gender expression, transitioning or sexual orientation are strictly prohibited.  It’s critical that all supervisors understand what constitutes harassment and discrimination and ensure that the employees they manage understand as well.

TrainingABC has produced a brand new video on this topic - SB396: LGBT Rights in California Workplaces