Section 11034 - Terms, Conditions, and Privileges of Employment(a) Compensation. (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.(2) Equal Compensation for Comparable Work. (Reserved.)(b) Fringe Benefits. (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 similar status.(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.(4) 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.(c) Lines of Progression. (1) 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:(A) 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 list.(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 underrepresented groups.(d) Dangers to Health, Safety, or Reproductive Functions.(1) If working 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:(A) 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.(2) An employer or other covered entity may require an applicant or employee to provide a physician's certification that the individual is endangered by the working conditions.(3) The existence of a greater risk for employees of one sex than another sex shall not justify a BFOQ defense.(4) An employer may not discriminate against members based on sex because of the prospective application of this subsection.(5) With regard to protections due on account of pregnancy, childbirth, or related medical conditions, see section 11035.(6) Nothing in this subsection shall be construed to limit the rights or obligations set forth in Labor Code section 6300 et seq.(e) Working Conditions. (1) Where rest periods are provided, equal rest periods must be provided to employees without regard to the sex of the employee.(2) Equal 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.(C) To 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.(D) 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.(4) 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.(f) Sexual Harassment. Sexual harassment is unlawful as defined in section 11019(b), and 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.(2) 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. (A) 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 perpetrator.(C) An employer or other covered entity may be liable for sexual harassment committed by a supervisor, coworker, or third party. 1. An 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 corrective action.4. An employee 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.(g) 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 11010).(h) Recording of Gender and Name. As provided in sections 11016(b)(1) and 11032(b)(2) of 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 11010). For recordkeeping purposes in accordance with section 11013(b), an employer may request an applicant to provide this information solely on a voluntary basis. (1) An applicant's 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 11010).(2) An employer shall not discriminate against an applicant based on the applicant's failure to designate male or female on an application form.(3) 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.(i) Additional Rights. (1) 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 of employment: (A) Nothing in this subsection shall preclude an employer from asserting a BFOQ defense, as defined above.(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 conditions.(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 transitioning.Cal. Code Regs. Tit. 2, § 11034
1. Change without regulatory effect renumbering former section 7291.1 to new section 11034 and amending section and NOTE filed 10-3-2013 pursuant to section 100, title 1, California Code of Regulations (Register 2013, No. 40).
2. Amendment of subsections (c)(2), (d)(5)-(6) and (f), new subsections (f)(1)-(f)(2)(C)4., subsection relettering and amendment of NOTE filed 12-9-2015; operative 4-1-2016 (Register 2015, No. 50).
3. Amendment of subsections (b)(1), (b)(3), (c)(1)-(c)(1)(B) and (d)(1), new subsection (d)(1)(A), repealer of subsection (d)(1)(B), subsection relettering, amendment of newly designated subsection (d)(1)(B) and subsections (d)(2)-(4) and (e)(1)-(2), new subsections (e)(2)(A)-(E), amendment of subsections (e)(5) and (g) and new subsections (h)-(i)(4) filed 5-26-2017; operative 7-1-2017 (Register 2017, No. 21).
4. Amendment of subsection (e)(2)(B) and amendment of NOTE filed 8-14-2017 as an emergency; operative 8-14-2017 (Register 2017, No. 33). A Certificate of Compliance must be transmitted to OAL by 2-12-2018 or emergency language will be repealed by operation of law on the following day.
5. Amendment of subsection (e)(2)(B) and amendment of NOTE refiled 2-13-2018 as an emergency; operative 2-13-2018 (Register 2018, No. 7). A Certificate of Compliance must be transmitted to OAL by 5-14-2018 or emergency language will be repealed by operation of law on the following day.
6. Amendment of subsection (e)(2)(B) and amendment of NOTE refiled 5-9-2018 as an emergency; operative 5-15-2018 (Register 2018, No. 19). A Certificate of Compliance must be transmitted to OAL by 8-13-2018 or emergency language will be repealed by operation of law on the following day.
7. Reinstatement of section as it existed prior to 8-14-2017 emergency amendment by operation of Government Code section 11346.1(f) (Register 2018, No. 33). Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921 and 12940, Government Code; Meritor Savings Bank v. Vinson (1986) 477 US 57, 67-68; Harris v. Forklift Systems (1993) 510 US 17, 23; Lyle v. Warner Bros. (2006) 38 Cal.4th 264, 273; Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 608; Miller v. Dept. of Corrections (2005) 36 Cal.4th 446.
1. Change without regulatory effect renumbering former section 7291.1 to new section 11034 and amending section and Note filed 10-3-2013 pursuant to section 100, title 1, California Code of Regulations (Register 2013, No. 40).
2. Amendment of subsections (c)(2), (d)(5)-(6) and (f), new subsections (f)(1)-(f)(2)(C)4., subsection relettering and amendment of Note filed 12-9-2015; operative 4-1-2016 (Register 2015, No. 50).
3. Amendment of subsections (b)(1), (b)(3), (c)(1)-(c)(1)(B) and (d)(1), new subsection (d)(1)(A), repealer of subsection (d)(1)(B), subsection relettering, amendment of newly designated subsection (d)(1)(B) and subsections (d)(2)-(4) and (e)(1)-(2), new subsections (e)(2)(A)-(E), amendment of subsections (e)(5) and (g) and new subsections (h)-(i)(4) filed 5-26-2017; operative 7/1/2017 (Register 2017, No. 21).