of what sex means.
FEHA may not be unique in
its treatment of sex. For example,
federal antidiscrimination law (Title
VII) prohibits discrimination based
on sex, but does not explicitly forbid
employment discrimination based on
gender identity. Sex discrimination, on
the other hand, is explicitly prohibited.
The federal enforcement agency for Title
VII, the Equal Employment Opportunity
Commission (EEOC), interprets Title
VII's ban on sex-based employment
discrimination to include gender identity
discrimination.
Legal definitions of sex and gender
may be imprecise, but employers should
be mindful to differentiate between sex
and gender. If employment documents
are similarly imprecise, they might not
get the information they are seeking.
Think of a transgender applicant or
employee, for example. FEHA defines
transgender to mean "a person whose
gender identity differs from the person's
sex at birth." An employee whose
birth sex is female and identifies as
male would be a transgender employee
under the FEHA definition because the
employee's gender identity (male) is
different from the employee's birth sex
(female). This person would probably
mark male if asked his gender and
female if asked his sex. (As you may
have also noticed, the pronouns used
to refer to transgender individuals
frequently coincide with the person's
gender instead of the person's sex.
Continuing to use pronouns that
sex rather than the employee's gender
may be unlawful and could constitute
harassment). Whether or not the
employee in the example would self-
identify as transgender or be considered
a transgender employee under other
applicable law, a gender non-conforming
employee's responses to the questions
will likely still vary depending upon
whether the questions ask for the
employee's sex or gender.
Understanding the difference
between sex and gender is also important
so that employers can take reasonable
steps to prevent and remedy illegal
discrimination and harassment in the
workplace. Under FEHA, taking all
reasonable steps includes having a
written harassment, discrimination and
retaliation prevention policy that lists
the protected classes including sex,
gender, gender identity and gender
expression. Employers and employees
need to know the differences so that they
will know how to avoid unlawful conduct
and how the company harassment and
discrimination policy will be enforced.
Training is one option. California
employers with 50 or more employees are
required to provide sexual harassment
training to their supervisory employees
every two years, or within six months
of an employee assuming a supervisory
position. Employers with fewer than
50 employees, and non-California
employers, may still consider training as
a reasonable step to prevent and remedy
illegal harassment and discrimination in
the workplace.
alone workplace gender policies that
answer common questions concerning
gender non-conforming employees,
and that provide guidance concerning
the procedures to change names on
employment records, the pronouns to
use to refer to employees, the use of
restrooms, employee privacy, dress codes
and health benefits. Workplace transition
plans can also guide employers when
employees transition from one gender to
another while employed by the company.
Employers might not currently have any
gender non-conforming employees, or,
maybe they do. After all, gender identity,
different from gender expression, may
not be apparent. In either case, gender
policies are useful not only to the
employer and gender non-conforming
employee(s), but also, to coworkers in
understanding workplace expectations
with respect to their gender non-
conforming colleagues.
Remember, sex is not that simple.
While gender- and sex-based harassment,
discrimination and retaliation might
both simply be unlawful harassment,
discrimination and retaliation based on
sex under applicable law, employers
should also understand that there is
difference between sex and gender,
and that an employee's gender may be
different from the employee's birth sex,
whether or not that employee identifies as
transgender or is considered a transgender
employee under applicable law.