SB 396 Gender Identity Training Protects Transgender Workplace Opportunities

Gender Symbols Displayed on RoadOctober 15, 2017, SB 396 was approved and requires employers to provide gender identity training that protects transgender workplace opportunities. On August 17, 2007, Assembly Bill 1825 (AB 1825) became effective and was mandated as a harassment prevention training requirement in the state of California. AB 1825 requires for employers to provide their supervisors (within a six month time frame of when they first took on their new position) with at least two hours of sexual harassment compliance training every two years. This statute went on to be modified under Assembly Bill 2053 (AB 2053) to include training regarding the topics of bullying and abusive conduct following its effective date of January 01, 2015. Despite the fact that there are two existing laws in place that aim to put an end to harassment, there is still inequality in the workplace seen today for transgender employees. For this reason, it is necessary to highlight reasons why SB 396, an amendment of current sexual harassment prevention training, is pertinent for the evolving workforce to increase tolerance and understanding about those issues.

A senate bill known as the “Transgender Work Opportunity Act” was recently introduced by Senator Ricardo Lara to protect transgender employees and improve their opportunities for employment. Senate Bill 396 aspires to increase inclusion and decrease discrimination in the workplace for transgender professionals. As of Sunday, October 15, 2017, Senate Bill 396 was approved by Governor Jerry Brown. When SB 396 becomes effective on January 01, 2018, the Transgender Work Opportunity Act will establish California as the first state to mandate compliance training encompassing gender identity, gender expression, and sexual orientation.

Advocates of SB 396 addressed that abusive conduct such as harassment will not only affect the physical, mental, and emotional well-being of the employee being targeted, but in turn will also impact the employer and entire organization as well. Bullying leads to lower morale and productivity, which goes on to increase rates of absenteeism, turnover, and workers compensation claims. The purpose of Senate Bill 396 as a whole is to dissolve any potential barriers to employment for transgender employees.

Requirements Mandated Under SB 396 the Transgender Work Opportunity Act

Under the California Fair Employment and Housing Act (FEHA), SB 396 requires employers with at least 50 employees to display a Department of Fair Employment and Housing (DFEH) approved workplace notice or poster with respect to transgender rights. It also requires employers with at least 50 employees to furnish two hours minimum of “prescribed training and education regarding sexual harassment to all supervisory employees within six months of their assumption of a supervisory position and once every two years” with an added training component regarding transgender rights.

Examples of anti-harassment compliance training would cover topics such as, but are not limited to:

  • Gender Identity
    • “Gender identity” means each person’s internal understanding of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.
  • Gender Expression
    • “Gender expression” means each person’s gender-related appearance or behavior, or the perception of such appearance or behavior, regardless of whether or not it is stereotypically associated with the person’s sex assigned at birth.
  • Sexual Orientation
    • “Sexual orientation” means each person’s sexual identity in relation to the gender to which they are attracted; the fact of being heterosexual, homosexual, or bisexual.

    A critical part of amending sexual harassment prevention training is proper understanding of Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) terminology, as well as proper explanations of what would be considered appropriate and inappropriate behavior towards transgender employees. Another key point to highlight is the usage of preferred names and pronouns as there are “laws protecting against gender discrimination [which] require that employers honor requests from employees to identify them by a preferred gender, name or pronoun.” Failure to use a name or pronoun requested by an employee may result in liability for the employer. As a precaution for this, organizations should take the initiative to address name and pronoun change requests as it is the responsibility of managers and employees to communicate with an individual based on their preferred name and/or pronoun. Exceptions to when employers may use the employee’s legal name or employee’s gender as specified by a government-issued ID would include scenarios such as issuing paychecks, where it would be a necessary to issue paychecks to their legal name. Education on the aforementioned topics must be administered by professionals specializing in these matters and contain realistic examples.

    Statistics About Transgender Discrimination in the Workplace

    The Human Rights Campaign issued statistics regarding fear keeping LGBTQ employees closeted at work as well as those surrounding talented employees that leave workplaces where they do not feel welcome. 62% of LGBTQ employees have heard jokes about sexual orientation and/or gender identity, which are generally interpreted as signs of exclusion. This type of behavior makes 31% of closeted employees fear tarnished relationships with their coworkers and 23% feel like they will be passed up for opportunities of advancement in their organization. A whopping approximate 70% of non-LGBTQ employees consider discussion of sexual orientation and/or gender identity to be “unprofessional” topics in the workplace. For this reason, roughly 53% of LGBTQ employees feel obligated to hide their sexual orientation in the office and about 35% are put in positions where they have to lie about their personal lives around their coworkers. To top it off, approximately 9% of LGBTQ employees have been observed to leave their place of employment completely due to feeling unwelcome in their workplace environment.

    According to studies aggregated by the Williams Institute in 2016 on Sexual Orientation Law and Public Policy, the state of California has approximately 20,000 transgender adults. From that number of individuals, up to 43% of gay and/or transgender employees have been subjected to discrimination in the workplace. Of that amount of employees, up to 17% of transgender employees have come forward about adverse career outcomes and up to 28% have even reported being passed up for a promotion due to their sexual orientation or gender identity. Straight employees were surveyed and research from those observations indicated that up to 30% of heterosexual workers attested to consistent discrimination and harassment in the workplace towards LGBTQ employees based on their sexual orientation or gender identity.

    Governor Jerry Brown has observed that there is an unsettling rate of unemployment in the transgender community. He feels that SB 396, the Transgender Work Opportunity Act and education for employers and employees through compliance training will be the stepping stone to equality in the workplace. Education would be a powerful starting point to introduce measures that would push California organizations to “open their doors to these valuable workers.”

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