The new year brings new laws for California employers to grapple with. Below we highlight the most significant new employment laws affecting California employers as of January 1, 2018. Companies based in California or with operations in California are encouraged to review their policies and procedures in light of these developments.
On October 5, 2017, Attorney General Jeff Sessions released a formal letter on behalf of the United States Department of Justice stating the DOJ’s official position that Title VII “does not prohibit discrimination based on gender identity per se, including transgender status,” officially retracting the DOJ’s previous position under the Obama Administration and setting up a direct conflict with the EEOC’s current position on the scope of Title VII.
The Trump Administration will leave in place an executive order signed by President Barack Obama, which bans sexual orientation and gender identity discrimination by federal contractors. President Obama signed the order in 2014. By doing so, he amended and expanded previous executive orders signed by Presidents Nixon and Clinton, which ban discrimination by federal contractors on the basis race, color, religion, sex, national origin, handicap, status as a parent, and age.
On November 3, 2015, Houston voters rejected Proposition 1, a broadly-worded human rights ordinance that would have made it illegal to discriminate on the basis of, among other things, gender identity. Opposition to that ordinance coalesced around the issue of restrooms, with many citizens expressing fear that the law would allow men to use women’s restrooms.
In its recent decision in David Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015), the EEOC ruled that discrimination based on sexual orientation is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964, despite the fact that Title VII does not explicitly include sexual orientation or gender identity in its list of protected bases. Continue Reading EEOC Rules Title VII Prohibits Sexual Orientation Discrimination
The Department of Labor has announced the release of a Final Rule implementing Executive Order 13672, which prohibits discrimination based on sexual orientation and gender identity by federal contractors and subcontractors. Executive Order 13672, signed by President Obama on July 21, 2014, amended Executive Order 11246 by adding sexual orientation and gender identity to the protected categories provided in the latter EO. The Final Rule will be effective 120 days after the date of its official publication in the Federal Register and will apply to government contracts entered into or modified after the effective date.
Executive Order 13672 went into effect on July 21, 2014 and amended Executive Order 11246 by adding sexual orientation and gender identity to the list of protected classes. Executive Order 13672, however, applies only to contracts entered on or after July 21, 2014. The Office of Federal Contract Compliance Programs (OFCCP) has now issued Directive 2014-02, which interprets the prohibition against sex discrimination in Executive Order 11246 to include discrimination on the basis of gender identity and transgender status. This means that contractors and subcontractors with contracts that predate July 21 can still be held liable for discrimination on the basis of gender identity and transgender status.
CNN is reporting that a Colorado school has decided that a 6-year-old boy, who identifies as a girl, and whose family is raising her as a girl, must use the boy’s bathroom or the staff or nurse’s bathroom for sick children. The family is worried about the stigmatizing impact this would have, and is worried about bullies, and has decided to keep the child home for now.
This story brings the national spotlight on an issue that employers are increasingly facing in the workplace. Transgender is a protected class in many cities and states across the Country, including California. Employers often face the same question the Colorado school is grappling with. Which bathroom should the transgender employee use? The courts have not provided a definitive answer to this question, and there is little to no guidance from cities or states on this issue. Transgender groups have published a number of opinions on the subject. Options will often depend on the employer’s workplace, the number and types of bathrooms that are available, and the employees at issue. What is considered “reasonable” in one workplace, may not work in another, and employers have to be careful about the issue of stigma that is raised by the Colorado girl’s parents. As a protected class, there will always be a question of whether the transgender employee was discriminated against somehow by the employer’s decision on which bathroom that employee can use.
In what has roundly been hailed as a landmark decision, the Equal Employment Opportunity Commission (“EEOC”) held in Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, EEOC Appeal No. 0120120821 (April 20, 2012) that, although no federal statute explicitly prohibits employment discrimination based on gender identity, transgender individuals may nonetheless state a claim for sex discrimination under Title VII.