Cal. Code Regs. Tit. 2, § 11031 - Defenses

Once employment discrimination on the basis of sex has been established, an employer or other covered entity may prove one or more appropriate affirmative defenses as generally set forth in section 11010, including, but not limited to, the defense of Bona Fide Occupational Qualification (BFOQ).

(a) Among situations that will not justify the application of the BFOQ defense are the following:

(1) A correlation between individuals of one sex and physical agility or strength;

(2) A correlation between individuals of one sex and height;

(3) Customer preference for employees of one sex;

(4) The necessity for providing separate facilities for one sex;

(5) The fact that an individual is transgender or gender non-conforming, or that the individual's sex assigned at birth is different from the sex required for the job; or

(6) The fact that members of one sex have traditionally been hired to perform the particular type of job.

(b) Personal privacy considerations may justify a BFOQ only where:

(1) The job requires an employee to observe other individuals in a state of nudity or to conduct body searches, and

(2) It would be offensive to prevailing social standards to have an individual of a different sex present, and

(3) It is detrimental to the mental or physical welfare of individuals being observed or searched to have an individual of a different sex present.

(c) Employers or other covered entities shall assign job duties and make other reasonable accommodations so as to minimize the number of jobs for which sex is a BFOQ.

(d) It is no defense to a complaint of harassment based on sex that the alleged harassing conduct was not motivated by sexual desire.

(e) Employers shall permit employees to perform jobs or duties that correspond to the employee's gender identity or gender expression, regardless of the employee's assigned sex at birth.

Notes

Cal. Code Regs. Tit. 2, § 11031

1. Change without regulatory effect renumbering former section 7290.8 to new section 11031 and amending section and NOTE filed 10-3-2013 pursuant to section 100, title 1, California Code of Regulations (Register 2013, No. 40).
2. New subsection (d) filed 12-9-2015; operative 4-1-2016 (Register 2015, No. 50).
3. Amendment of subsection (a)(4), new subsection (a)(5), subsection renumbering, amendment of subsections (b)(2)-(3) and new subsection (e) filed 5-26-2017; operative 7-1-2017 (Register 2017, No. 21).

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12940, 12943 and 12945, Government Code.

1. Change without regulatory effect renumbering former section 7290.8 to new section 11031 and amending section and Note filed 10-3-2013 pursuant to section 100, title 1, California Code of Regulations (Register 2013, No. 40).
2. New subsection (d) filed 12-9-2015; operative 4-1-2016 (Register 2015, No. 50).
3. Amendment of subsection (a)(4), new subsection (a)(5), subsection renumbering, amendment of subsections (b)(2)-(3) and new subsection (e) filed 5-26-2017; operative 7/1/2017 (Register 2017, No. 21).