New regulations adopted by Department of Justice (DOJ) regarding RIPA, the California Racial and Identity Profiling Act of 2015, reporting requirements conflict with anti-discrimination protections afforded to all California employees. RIPA was enacted to address concerns of bias and discrimination through racial and identity profiling within law enforcement agencies. RIPA requires officers to report their perception of personal characteristics of the individuals stopped (e.g., age, gender identity, sexual orientation, race/ethnicity) along with the reasons for the detention/search, additional actions taken by the officer, and the outcomes of the stop. Officers submit this information to their employing agency, who then submits the data to the DOJ without the name or other unique identifying information of the peace officer involved. (Gov. Code § 12525.5.) The data submitted to the DOJ ultimately becomes a public record.
The RIPA statute also authorizes the Attorney General to issue regulations for the collection and reporting of data that specify all data to be reported, and provide standards, definitions, and technical specifications to ensure uniform reporting practices across all reporting agencies. AG Bonta has enacted new regulations that require officers to report personal information about themselves, including their own gender identity beginning January 1, 2024.
However, under the California Fair Employment and Housing Act (FEHA) regulations, it is illegal for an officers’ employing agency to require an employee to disclose that information. As a result, the RIPA regulation should likely have been rejected by the Office of Administrative Law (OAL) for failing the “consistency” standard, which requires “being in harmony with, and not in conflict with or contradictory to, existing statutes, court decisions, or other provisions of law.” (Gov. Code § 11349(d).) The OAL is required to return any regulation that “conflicts with an existing state regulation and the agency has not identified the manner in which the conflict may be resolved.” (Gov. Code § 11349.1(d)(4).)
New Regulation
The new regulations were purportedly enacted to “enable the Board to determine whether there is a link between officer’s race and/or gender and (1) racial and identity profiling and/or (2) the decision making of the officer.” Paradoxically, the new regulations will force the most vulnerable officers to disclose their gender identity to their public employers. Under the regulation, “‘Gender of Officer’ refers to the officer’s identified gender. When reporting this data element, the officer shall select all applicable data values set forth in section 999.226, subdivision (a)(6)(A).”
Conflict with DFEH Employee Protections
Once that amendment becomes operative, there will be conflict between RIPA and FEHA. In 2017, amendments were made to FEHA regulations that prohibited employers from asking employees about their gender. Under FEHA, Cal. Code Regs. tit. 2 § 11034 Terms, Conditions, and Privileges of Employment:
“(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.”
The new RIPA regulations effectively force an officer to disclose their gender to their employer, in violation of FEHA. The California Department of Justice (DOJ) justifies this requirement reasoning that Government Code section 12525.5, subdivision (e) authorizes the Attorney General to issue regulations to “specify all data to be reported” under RIPA. However, that provision does not give the Attorney General authority the nullify employee protections under FEHA by requiring disclosure of otherwise private information. FEHA clearly states, “[a]ny state law that purports to require or permit any action that would be an unlawful practice under this part shall to that extent be invalid.”
During RIPA’s Proposed Rulemaking Action comment period, concerns were raised about the conflict between RIPA and FEHA in requiring gender self-identification. The DOJ oddly responded addressing race and ethnicity, but not gender: “the Department has not identified any provision within the FEHA or within its implementing regulations that would prohibit the collection of race or ethnicity of an officer for purposes of stop data or other types of data.” (Emphasis added.) (The DOJ either misinterpreted or dodged another comment asking: “What if the officer does not identify with these limited categories?” The DOJ’s response discussed the requirement of reporting the perceived gender of the person stopped rather than of the officer. )
Furthermore, the collection of such data is easily distinguishable from forced disclosure. This conflict between an employer’s reporting requirements and an employee’s privacy rights arises in other contexts. For example, when employers must request information related to gender for legally required reporting, such as federal EEO-1 Reports, employee disclosure of that information must be voluntary. Employees can be asked to self-identify their gender, but if they decline to do so, federal law requires employers to identify the employee’s gender based on employment records or other reliable information. Similarly, here, an officer’s self-identification should be voluntary.
In support of its position that the California Legislature has required employers to provide demographic information to the state, the DOJ references California Government Code section 12999 which obligates “private employers of 100 or more employees to report to Department of Fair Employment and Housing pay and hours-worked data by job category and by sex, race, and ethnicity.” The California Civil Rights Department (CRD) states that “[e]mployee self-identification is the preferred method of identifying sex information. If an employee declines to state their sex, employers must* still report the employee according to one of the three sex categories, using current employment records or other reliable records or information, such as an employee’s self-identified pronouns.”
It is likely that RIPA could legally impose the same practice. However, as currently written, RIPA requires the employee to “select all applicable data values” and leaves no option for other methods of data collection.
Moreover, according to the CRD, “[u]nder the Gender Recognition Act of 2017 (Senate Bill 179), California officially recognizes three genders: female, male, and non-binary. Therefore, employers should report employees’ sex according to these three categories.” Accordingly, the RIPA data collection should not go beyond these categories.
The recent RIPA amendments added another data point requiring the self-identification of an officer’s race or ethnicity. However, there is no FEHA regulation related to race or ethnicity that is analogous to Cal. Code Regs. tit. 2 § 11034(i)(1) which prohibits any inquiry into an individual’s gender.
Still, the above-mentioned state and federal regulations related to pay data follow the practice of encouraging employee-self-identification, but, if that is not voluntarily provided, allowing the employer to identify the employee’s race or ethnicity based on employment records or other reliable information. Nevertheless, because there is no specific prohibition on inquiring about race or ethnicity, it is likely that RIPA could require such self-identification by an officer.
Conclusion
If an officer declines to voluntarily self-identify their gender to their employing agency, the agency could comply with the RIPA regulations by reporting based on employment records or other reliable information, as is the practice with state and federal pay data reporting requirements. However, uncertainty exists regarding whether the RIPA statute and regulations are permit such an arrangement. Thus, compliance with these regulations by ordering officers to disclose their gender identity creates significant potential liability for local agencies under California’s antidiscrimination statutes. Public safety unions may wish to meet and confer with their employing agency regarding whether such disclosures are voluntary or mandatory.
