184 | 2025 Cal-Peculiarities ©2025 Seyfarth Shaw LLP www.seyfarth.com occupation to wear a uniform” and for requiring an employee to wear a costume while portraying a specific character or playing a dramatic role.261 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.”262 “Gender expression” means “gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”263 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.”264 Regulations provide additional protections for gender identity and transgender employees in the workplace. The regulations add a definition of “transitioning,”265 and prohibited discrimination against individuals who are transitioning, have transitioned, or are perceived to be transitioning.266 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.267 The regulations further prohibit employers from inquiring about sex, gender identity, or gender expression as a condition of employment,268 and forbid imposing dress standards that conflict with an employee’s gender identity or gender expression, unless the employer can establish a business necessity.269 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.270 Additionally, to ensure that transgender and gender nonconforming employees are aware of their workplace rights and grievance procedures, employers are required by law to display a poster entitled, "The Rights of Employees Who Are Transgender or Gender Nonconforming" in a prominent and accessible location in the workplace.271 6.10 Special Rules for Religious Accommodation While FEHA’s definition of “religion” may in some way be narrower than its federal counterpart,272 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.”273 “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 an individual observing a religious creed.”274
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