178 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com 6.9 Special Rules for Gender, Gender Identity, and Gender Expression California’s prohibition against sex discrimination includes discrimination on the basis of “gender,” a term that means not only biological sex but also “gender identity and gender expression.”257 “Gender expression” means “gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”258 The statutory language aims to protect persons whose vocal pitch, facial hair, personality, hairstyle, mannerisms, clothing, or demeanor is associated with a particular gender. For example, the statute would forbid employment discrimination on the basis that a male employee appeared effeminate or on the basis that a female employee appeared masculine. Notwithstanding this prohibition, employers may continue to impose “reasonable workplace appearance, grooming, and dress standards not precluded by other provisions of state or federal law, provided that an employer shall allow an employee to appear or dress consistently with the employee’s gender identity or gender expression.”259 Regulations provide additional protections for gender identity and transgender employees in the workplace. The regulations add a definition of “transitioning,”260 and prohibited discrimination against individuals who are transitioning, have transitioned, or are perceived to be transitioning.261 The regulations also require employers to provide equal access to facilities such as bathrooms, regardless of the employee’s gender identity, and to provide gender-neutral signage for single-occupancy facilities.262 The regulations further prohibit employers from inquiring about sex, gender identity, or gender expression as a condition of employment,263 and forbid imposing dress standards that conflict with an employee’s gender identity or gender expression, unless the employer can establish a business necessity.264 The regulations also require employers to abide by the employee’s preferred name, pronouns (including gender-neutral pronouns), and gender identity, unless the employer otherwise must, by law, utilize the employee’s legal name and the sex assigned at birth.265 6.10 Special Rules for Religious Accommodation While FEHA’s definition of “religion” may in some way be narrower than its federal counterpart,266 the scope of the California duty to accommodate religious practices is broader in some aspects than the corresponding federal duty. 6.10.1 Express coverage of specified religious practices Federal law protects religious workplace expression only in general terms. California differs, by expressly defining “religion” to encompass “all aspects of religious belief, observance, and practice, including religious dress and grooming practices.” “Religious belief or observance” includes “observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice.”267 “Religious dress practice” includes “the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance” of an individual’s religious creed. “Religious grooming practice” includes “all forms of head, facial, and body hair that are part of the observance” of the individual’s religious creed.268 6.10.2 Disallowance of segregation as a religious accommodation Judicial interpretations of federal law have permitted employers to accommodate religious objections to the employee’s personal appearance standards by having the religiously objecting employee—while retaining pay and benefits—work in a secluded area of the workplace. California categorically rejects that approach: “An accommodation of an individual’s religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.”269
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