SB 396: Workplace training adds transgender persons

Senate Bill 396, known as The Transgender Work Opportunity Act, signed into law on Oct. 15, 2017, took effect on Jan. 1, 2018. The bill amended the California Fair Employment and Housing Act with respect to transgender persons. The act does not change substantive anti-discrimination law: sexual orientation has been a protected category under the FEHA since 2000, and gender identity and expression have been protected under the FEHA since 2004.

What the law does do is change the notice and training requirements regarding the prevention of workplace discrimination and harassment of gay and transgender persons. First, the act requires employers to include, as an element of the two-hour supervisor-level anti-sexual harassment training (often referred to as "AB 1825 Training" after the 2007 assembly bill that mandated such training) a curriculum that expressly discusses "gender identity, gender expression, and sexual orientation" as protected classifications under the FEHA. Notably, there is no specific time requirement for this topic within the training, but the discussion should certainly be substantive -- and indeed, the anti-harassment policies and training programs of many California employers already cover such categories.

The act also requires a new posting, to be created by the Department of Fair Employment and Housing, in a prominent and accessible location in the workplace (such as an employee bulletin board in a break room or near a time clock) regarding transgender rights under the FEHA. Further, the act requires that employers obtain and distribute to employees the Department's informational sheet regarding the illegality of sexual harassment and related topics. The act does not state how often this informational sheet needs to be distributed, but a conservative approach would be to provide it to all existing employees and thereafter to all new hires.

The act also amends portions of the California Unemployment Insurance Code and the 2014 California Workforce Innovation and Opportunity Act, which makes programs and services available to individuals with "employment barriers," to include transgender and gender nonconforming individuals as persons with such employment barriers (and who therefore have access to such programs and services). Further, appointments to the California Workforce Development Board would be expanded to include representatives of community-based organizations that serve transgender and gender nonconforming individuals.