According to regulations recently adopted by the New York State Division of Human Rights, transgender individuals are protected under the Empire State’s Human Rights Law (“HRL”). As such, discrimination and harassment against transgender people is unlawful under the HRL. The new regulations, which became effective on January 20, 2016, also expand the definition of “sex” under New York law to include transgender status and gender identity. These new regulations apply to both public and private employers throughout New York.
Under these regulations, the New York Division of Human Rights will accept and process complaints alleging gender-identity discrimination and other illegal discrimination against transgender individuals, as well those alleging sex discrimination and disability discrimination. If an employer is found to have engaged in “willful, wanton or malicious” discrimination, New York’s Commissioner of Human Rights may award civil fines and penalties of up to $100,000 in addition to damages for lost wages and mental anguish. Unlike many federal anti-discrimination laws, compensatory damages to individuals are not capped under the HRL. The Division of Human Rights also may require employers to effectuate policy changes and undergo training in some circumstances.
The adoption of these new regulations followed shortly on the heels of the New York City Commission on Human Rights (“Commission”) issuing formal guidance on transgender discrimination in violation of the New York City Human Rights Law (“NYCHRL”). The Commission’s guidance, issued on December 21, 2015, specifies that gender discrimination includes discrimination or harassment based on gender identity, gender expression, and transgender status. Additionally, it states that the Commission may consider “the lack of an adequate anti-discrimination policy” as a factor when “determining liability, assessing damages, and mandating certain affirmative remedies.”
The guidance also lists the following eight violations of the NYCHRL related to gender discrimination:
- Failing to Use a Person’s Preferred Name or Pronoun. This would include, for example, deliberately or repeatedly referring to a transgender woman as “him” despite that person making clear that she prefers to be referred to as “her.” Employers are encouraged to implement a policy to ask all employees to specify their preferred name and gender pronouns (to avoid singling out any particular employee).
- Refusing to Allow Use of Single-Sex Facilities or Programs Consistent with Gender. This may include, for instance, forbidding a transgender woman from using the women’s restroom or requiring proof of gender to be eligible for access to a gender or sex-based program. Preventing someone from participating in a program based on concerns that it could make others feel uncomfortable also could constitute a violation. Thus, employers might consider offering single-occupancy restrooms that are not designated for any sex or gender, or private space within a multi-user facility for employees with privacy concerns. Employers also are urged to train all employees to ensure compliance with the policy.
- Sex Stereotyping. This could include anti-gay epithets when communicating with or about an employee based upon that employee’s perceived lack of conformity with gender norms, or making personnel decisions based upon an employee’s failure to conform to the employer’s notion of how someone of that gender should behave at work. Here again, employers may diminish the likelihood of potential violations by training all employees to create and maintain a workplace that is free from sex stereotyping.
- Imposing Gender-Based Uniforms or Grooming Standards. In addition to mandating different uniforms for men and women, requiring only those employees who identify as male to have short hair or limiting the wearing of jewelry to employees who identify as female may constitute a violation. The guidance does specify that providing different uniform shirts (e.g., a woman’s blouse and a man’s button-down shirt) would be a violation; still, employers cannot require an employee wear one style over another. The guidance does, however, confirm that customer or client preferences will not excuse an employer’s policy that imposes such uniforms or standards.
- Providing Employee Benefits Based on Gender. This type of violation might include offering health benefits to the opposite-sex spouses of employees but not to their same-sex spouses, or excluding coverage for health services related to gender transition, or providing a child-care benefit only to female employees.
- Gender-Based Accommodations. A violation may include refusing to provide unpaid medical leave to a transgender employee while routinely granting unpaid medical leave to other employees, or allowing leave for a woman to undergo reconstructive breast surgery while denying that same accommodation to a transgender woman. Employers should create internal procedures so that all accommodation requests are reviewed by employees who are trained to provide accommodations in a non-discriminatory manner.
- Discriminatory Harassment. Violations here could include conduct motivated by a person’s actual or perceived gender identity, such as a pattern of verbal harassment, the threat or use of violence or force, damaging property, and cyberbullying.
- Engaging in Reprisals. Treating an employee unfavorably for complaining about discrimination or for being interviewed in connection with a coworker’s discrimination complaint would be a violation. Examples of unfavorable treatment may include reassigning the employee to undesirable shifts or tasks, demoting or firing that employee, or denying a discretionary accommodation that is routinely granted to other employees.
Employers in New York City who wish to reduce their exposure to such claims should implement internal anti-discrimination policies and take steps to train their employees regarding their obligations under the NYCHRL. Similarly, employers should establish internal reporting procedures confirming that employees can report perceived violations without fear of reprisal and train managers and supervisors to respond to such complaints promptly and effectively.