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What Does SB 396 Mean For Employers?

What Does SB 396 Mean For Employers?

As of January 1, 2018, all California employers will need to post a “Transgender Rights in the Workplace” as directed by SB 396.

The poster, developed by Department of Fair Employment and Housing (DFEH), must be displayed along with other mandatory workplace notices in a prominent and accessible area, such as a cafeteria or meeting room.

The poster covers

  • Definitions of terms such as transgender, gender identity, gender expression and gender transition.
  • A discussion on the right of employees to use restrooms, locker rooms and other similar facilities corresponding to their gender identity.
  • The importance of allowing an employee to dress in accordance with the employee’s gender identity and expression.

“We expect this posting requirement to increase understanding of the law and assist California employers in providing safe and inclusive work environments,” said Kevin Kish, Director of DFEH, in a statement.

Currently, the California Fair Employment Housing Act (FEHA) requires business with 50 or more employees to provide sexual harassment training to supervisors every two years, but now this training will need to cover the additional topics, so it is incumbent upon the employer to ensure that their trainer has adequate experience and knowledge to be able to do this.

“S.B. 396 would add a requirement for employers to provide practical training to supervisors to prevent harassment of lesbian, gay, bisexual and transgender (LGBT) employees—as well as those who are perceived as LGBT,” said  Michael Stevens, an attorney with Seyfarth Shaw in San Francisco.

The issue of discrimination based on sexual orientation is complicated and I acknowledge the complexity of the matter as it faces employers and HR professionals all across the country.

Currently, and a further demonstration of this complexity, two federal agencies, the Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) are at odds over whether Title VII protects against sexual orientation discrimination.

The EEOC’s position is that Title VII forbids employment discrimination based on gender identity, protects against sexual orientation discrimination and that sexual orientation is “inherently a ‘sex-based’ consideration.”

The DOJ’s position runs contrary to this and simply put says that Title VII does not ( my italics added) prohibit sexual orientation discrimination, and that Congress has not taken up the issue and added sexual orientation as a protected class or defined “sex” to include sexual orientation.

Meanwhile, case law has been equally inconsistent. The First, Second, Third, Fourth, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuit Courts have all held that sexual orientation discrimination is not sex discrimination as prohibited under Title VII. However, the Seventh Circuit, in Hively v. Ivy Tech, ruled that sexual orientation is protected under Title VII and an en banc, or full panel, of the Second Circuit is reconsidering an appeal of its recent decision in Zarda v. Altitude Express.

While waiting for clarification, I would encourage anyone still unclear about Title VII to listen to Wendy Fischman, Partner, Potomac Law Group, Washington, DC provide a clear and concise overview and what the implications of the Zarda case are for employers.

It is also worth noting that although the US Supreme court has not yet decided to take up the matter, the stage is set and pressure is mounting with 76 companies, including Google, Apple, and American Airlines, all urging it to get involved and establish anti-discrimination protections for gay, lesbian and transgender employees.

Until such time as the matter is comprehensively and definitively defined, I recommend employers implement best practices to avoid discrimination claims. These include:

  • Implement and maintain EEO and Anti-discrimination policies
  • Train your workers and managers
  • Ensure leadership models and enforces correct behavior
  • Ensure all employees are made aware of complaint and grievance procedures
  • Make diversity, equality, and inclusion a priority in your organization
  • Thoroughly investigate all complaints
  • Enforce a zero tolerance policy for retaliation

Norman Ford is the VP of Operations for Compliance Solutions at Skillsoft.

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