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California Expands List of Prohibited Workplace Conduct

  • August 7, 2003

A recent amendment to the California Fair Employment and Housing Act has expanded the definition of "sex" to include the term "gender" in the prohibitions against workplace discrimination and harassment. Government Code Section 12926, subdivision (p) has been amended to define "sex" as follows:

"Sex" includes, but is not limited to, pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. "Sex" also includes, but is not limited to, a person's gender, as defined in Section 422.76 of the Penal Code, except that, for purposes of this part, the reference in that definition to the "victim" shall mean the employee or applicant and the reference in that definition to the "defendant" shall mean the employer or other covered entity or person subject to applicable prohibitions under this part.

Gender, as defined by Penal Code Section 422.76, for FEHA purposes, is a person's "actual sex, or the [employer]'s perception of the [employee or applicant]'s sex, and includes the [employer]'s perception of the [employee or applicant]'s identity, appearance or behavior, whether or not that identity, appearance, or behavior is different from that traditionally associated with the [employee or applicant]'s sex at birth." Pen. Code Section 422.76.

The new law also amends Government Code Section 12949, which states:

Nothing in this part relating to gender-based discrimination affects the ability of an employer to require an employee to adhere to 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.

©2003 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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