Earlier today, we held a Legal Beagle Bagel Breakfast training workshop at the law firm. (If you would like to participate, email email@example.com and we will add your name to the email invitation list.) The workshop was on dress and grooming standards. As the weather gets warmer, we see employees with more casual clothing, and sometime with less clothing than should be found in a workplace. We have found it advantageous to address this issue with employees before someone tests the dress code policy. That is good advice for all.
One of the questions asked at the seminar is how to handle persons of one gender who feels more like the other gender. In days gone by, we commonly used terms such as transsexual or transvestite. In today's parlance, the law uses terms such as "gender identity" or "gender expression."The California Fair Employment and Housing Act ("FEHA") prohibits discrimination based on these categories.
Under FEHA, gender expression means "a person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth." (Government Code, section 12926(q).) Gender identity is not defined by the law. Nevertheless, it appears that discrimination is prohibited against a person who has undergone a sex change, is in the process, someone who may be thinking about it, or someone who wants to appear or act like a person of the opposite gender.
Of course, this can lead to several challenges for HR professionals. For example, how does the employer discover the sexual identity or expression of a person? Is proof required? (I hope not.) What characteristics are so prominent that one would associate them with the other gender than that of the worker's birth? And of course, the concern on everyone's mind -- which restroom does the person use?
I'm not sure what the answers are to each of these, and many other, questions related to gender expression and identity. However, I do realize that FEHA includes a provision pertaining to workplace appearance and gender expression. (Government Code section 12949.) The provision allows an employer to maintain reasonable workplace appearance, grooming, and dress standards that are otherwise lawful. For example, reasonable grooming standards based on gender are generally legal. However, under FEHA, "an employer shall allow an employee to appear or dress consistently with the employee's gender identity or gender expression."
What does this mean? Generally, an employee is permitted to dress in the attire with his/her gender of choice. However, the dress or attire must be consistent with the employer's business practices and policies. thus, if a man dresses like a woman, he will still be required to adhere to the company dress and attire policies for women in the workplace.
But in reality, handling these issues will be less than simple. For example, does this mean that a woman who expresses herself as a man is entitled to wear a male swimsuit at the company's family picnic? As my partner says, "The devil is in the details." It will be very interesting to see how this body of law develops over time. And of course, law is often made with the most extreme of facts. That doesn't always make for the best law!