Current through Register 2022 Notice Reg. No. 14, April 8, 2022
(1) Except as otherwise
required or permitted by regulation, an employer or other covered entity shall
not base the amount of compensation paid to an employee, in whole or in part,
on the employee's sex.
Compensation for Comparable Work. (Reserved.)
(1) It is unlawful for an employer to
condition the availability of fringe benefits upon an employee's sex, including
gender identity and gender expression.
(2) Insofar as an employment practice
discriminates against one sex, an employer or other covered entity shall not
condition the availability of fringe benefits upon whether an employee is a
head of household, principal wage earner, secondary wage earner, or of other
(3) Except as
otherwise required by state law, an employer or other covered entity shall not
require unequal employee contributions by similarly situated employees to
fringe benefit plans based on the sex of the employee, nor shall different
amounts of basic benefits be established under fringe benefit plans for
similarly situated employees.
It shall be unlawful for an employer or other covered entity to have a pension
or retirement plan that establishes different optional or compulsory retirement
ages based on the sex of the employee.
Lines of Progression.
It is unlawful for an employer or other
covered entity to designate a job exclusively for one sex or to maintain
separate lines of progression or separate seniority lists based on sex unless
it is justified by a permissible defense. For example, a line of progression or
seniority system is unlawful that:
Prohibits an individual from applying for a job labeled "male" or "female," or
for a job in a "male" or "female" line of progression; or
(B) Prohibits an employee scheduled for
layoff from displacing a less senior employee on a "male" or "female" seniority
(2) An employer or
other covered entity shall provide equal opportunities to all employees for
upward mobility, promotion, and entrance into all jobs for which they are
qualified. However, nothing herein shall prevent an employer or other covered
entity from implementing mobility programs to accelerate the promotion of
Dangers to Health, Safety, or
conditions pose a greater danger to the health, safety, or reproductive
functions of applicants or employees of one sex than to individuals of another
sex working under the same conditions, the employer or other covered entity
shall make reasonable accommodation to:
Alter the working conditions so as to eliminate the greater danger, unless it
can be demonstrated that the modification would impose an undue hardship on the
employer. Alteration of working conditions includes, but is not limited to,
acquisition or modification of equipment or devices and extension of training
or education; or
(B) Upon the
request of an employee of the more endangered sex, transfer the employee to a
less hazardous or strenuous position for the duration of the greater danger,
unless it can be demonstrated that the transfer would impose an undue hardship
on the employer.
employer or other covered entity may require an applicant or employee to
provide a physician's certification that the individual is endangered by the
existence of a greater risk for employees of one sex than another sex shall not
justify a BFOQ defense.
employer may not discriminate against members based on sex because of the
prospective application of this subsection.
With regard to protections due on account
of pregnancy, childbirth, or related medical conditions, see section
(6) Nothing in this subsection shall be
construed to limit the rights or obligations set forth in Labor Code section
(1) Where rest periods are
provided, equal rest periods must be provided to employees without regard to
the sex of the employee.
access to comparable, safe, and adequate facilities shall be provided to
employees without regard to the sex of the employee. This requirement shall not
be used to justify any discriminatory employment decision.
(A) Employers shall permit employees to use
facilities that correspond to the employee's gender identity or gender
expression, regardless of the employee's assigned sex at birth.
(B) Employers and other covered entities with
single-occupancy facilities under their control shall use gender-neutral
signage for those facilities, such as "Restroom," "Unisex," "Gender Neutral,"
"All Gender Restroom," etc.
respect the privacy interests of all employees, employers shall provide
feasible alternatives such as locking toilet stalls, staggered schedules for
showering, shower curtains, or other feasible methods of ensuring privacy.
However, an employer or other covered entity may not require an employee to use
a particular facility.
Employees shall not be required to undergo, or provide proof of, any medical
treatment or procedure, or provide any identity document, to use facilities
designated for use by a particular gender.
(E) Notwithstanding subsection (i)(1)(B) of
this section, nothing shall preclude an employer from making a reasonable and
confidential inquiry of an employee for the sole purpose of ensuring access to
comparable, safe, and adequate multi-user facilities.
(3) Support services and facilities, such as
clerical assistance and office space, shall be provided to employees without
regard to the employee's sex.
Job duties shall not be assigned according to sex stereotypes.
(5) It is unlawful for an employer or other
covered entity to refuse to hire, employ or promote, or to transfer, discharge,
dismiss, reduce, suspend, or demote an individual on the grounds that the
individual is not sterilized or refuses to undergo sterilization.
(6) It shall be lawful for an employer or
labor organization to provide or make financial provision for childcare
services of a custodial nature for its employees or members who are responsible
for the care of their minor children.
Sexual Harassment. Sexual harassment is
unlawful as defined in section
includes verbal, physical, and visual harassment, as well as unwanted sexual
advances. An employer may be liable for sexual harassment even when the
harassing conduct was not motivated by sexual desire. A person alleging sexual
harassment is not required to sustain a loss of tangible job benefits in order
to establish harassment. Sexually harassing conduct may be either "quid pro
quo" or "hostile work environment" sexual harassment:
(1) "Quid pro quo" (Latin for "this for
that") sexual harassment is characterized by explicit or implicit conditioning
of a job or promotion on an applicant or employee's submission to sexual
advances or other conduct based on sex.
Hostile work environment sexual
harassment occurs when unwelcome comments or conduct based on sex unreasonably
interfere with an employee's work performance or create an intimidating,
hostile, or offensive work environment.
The harassment must be severe or pervasive such that it alters the conditions
of the victim's employment and creates an abusive working environment. A
single, unwelcomed act of harassment may be sufficiently severe so as to create
an unlawful hostile work environment. To be unlawful, the harassment must be
both subjectively and objectively offensive.
(B) An employer or other covered entity may
be liable for sexual harassment even though the offensive conduct has not been
directed at the person alleging sexual harassment, regardless of the sex,
gender, gender identity, gender expression, or sexual orientation of the
An employer or
other covered entity may be liable for sexual harassment committed by a
supervisor, coworker, or third party.
employer or other covered entity is strictly liable for the harassing conduct
of its agents or supervisors, regardless of whether the employer or other
covered entity knew or should have known of the harassment.
2.An employer or other covered entity is
liable for harassment of an employee, applicant, or independent contractor,
perpetrated by an employee other than an agent or supervisor, if the entity or
its agents or supervisors knows or should have known of the harassment and
fails to take immediate and appropriate corrective action.
3.An employer or other covered entity is
liable for the sexually harassing conduct of nonemployees towards its own
employees where the employer, or its agents or supervisors, knows or should
have known of the conduct and fails to take immediate and appropriate
who harasses a co-employee is personally liable for the harassment, regardless
of whether the employer knew or should have known of the conduct and/or failed
to take appropriate corrective action.
Physical Appearance, Grooming,
and Dress Standards. It is unlawful to impose upon an applicant or employee any
physical appearance, grooming or dress standard which is inconsistent with an
individual's gender identity or gender expression, unless the employer can
establish business necessity (section
Recording of Gender and Name. As provided
these regulations, inquiries that directly or indirectly identify an individual
on the basis of sex, including gender, gender identity, or gender expression,
are unlawful unless the employer establishes a permissible defense (section
). For recordkeeping purposes
in accordance with section
employer may request an applicant to provide this information solely on a
designation on an application form of a gender that is inconsistent with the
applicant's assigned sex at birth or presumed gender may be considered
fraudulent or a misrepresentation for the purpose of an adverse employment
action based on the applicant's designation only if the employer establishes a
permissible defense (section
(2) An employer shall not discriminate
against an applicant based on the applicant's failure to designate male or
female on an application form.
If an employee requests to be identified with a preferred gender, name, and/or
pronoun, including gender-neutral pronouns, an employer or other covered entity
who fails to abide by the employee's stated preference may be liable under the
Act, except as noted in subsection (4) below.
(4) An employer is permitted to use an
employee's gender or legal name as indicated in a government-issued
identification document only if it is necessary to meet a legally-mandated
obligation, but otherwise must identify the employee in accordance with the
employee's gender identity and preferred name.
It is unlawful for employers and other
covered entities to inquire about or require documentation or proof of an
individual's sex, gender, gender identity, or gender expression as a condition
(A) Nothing in this subsection
shall preclude an employer from asserting a BFOQ defense, as defined
(B) Nothing in this
subsection shall preclude an employer and employee from communicating about the
employee's sex, gender, gender identity, or gender expression when the employee
initiates communication with the employer regarding the employee's working
(2) It is
unlawful to deny employment to an individual based wholly or in part on the
individual's sex, gender, gender identity, or gender expression.
(3) Nothing in these regulations shall
prevent an applicant or employee from asserting rights under other provisions
of the Act, including leave under the California Family Rights Act and rights
afforded to individuals with mental or physical disabilities.
(4) It is unlawful to discriminate against an
individual who is transitioning, has transitioned, or is perceived to be