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New California employer responsibilities in 2018

At Duggan Law Corporation, we advise employers of their legal responsibilities. One of those responsibilities is to prevent and stop illegal discrimination and harassment. Beginning in 2018, a new law expands those duties as they concern lesbian, gay, bisexual, and transgender employees.

Current law

California law explicitly prohibits discrimination and harassment against employees and job applicants based on sexual orientation, gender identity, and gender expression. The law covers private and public employers with at least five employees. Retaliation is also prohibited against anyone alleging harassment or discriminating at work or in hiring based on a protected category.

Federal law is in flux. While LGBT discrimination is not explicitly illegal, the Equal Employment Opportunity Commission or EEOC, the federal agency responsible for enforcing laws against discrimination, interprets the federal sex-discrimination ban to include discrimination based on sexual orientation or gender identity. However, U.S. Attorney General Jeff Sessions explicitly disagrees with the EEOC, and federal courts are split.

California state law is much clearer, directing employers about what is illegal, and requiring certain steps to prevent discrimination. Many employers already must train supervisors and educate workforces about unlawful discrimination and harassment.

More protections in 2018

As of January 1, a new California law requires employers with at least 50 employees to train and educate supervisors about harassment based on sexual orientation, gender expression, and gender identity. This subject matter is to be incorporated into required, ongoing training on sexual harassment.

The training must include "practical examples" of harassment based on these three protected characteristics and be conducted by "trainers or educators with knowledge and expertise in those areas."

In addition, all employers, regardless of size, must post a poster explaining transgender rights in a "prominent and accessible" place. This poster is officially provided by the California Department of Fair Employment and Housing (DFEH), the state counterpart of the federal EEOC.

The poster provides key definitions:

  • Gender expression is an employee's "gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth." If expression is different from assigned gender, the term "gender nonconforming" may be appropriate.
  • Transgender refers to a person with a gender identity different from their assigned sex at birth.

The poster also describes social and physical transitioning to a different gender, what questions employers may not ask, dress code issues, and bathroom requirements. The poster also tells how to file a complaint for LGBT discrimination or harassment with DFEH.

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