New York City employers should take note of two recent employment-related legislative developments:
First, the New York City Commission on Human Rights (Commission) released its Legal Enforcement Guidance on the [sic]Discrimination on the Basis of Gender Identity or Expression (Guidance). While the New York City Human Rights Law (NYCHRL) has protected individuals from discrimination on the basis of gender identity and expression since 2002, the Commission’s Guidance explains the range of possible types of discrimination related to gender, gender identity, and gender expression.
Second, the New York City Council unanimously passed the Caregiver Discrimination Bill (Bill), which Mayor Bill de Blasio is expected to sign. The Bill will add caregiver status to the list of covered protections under the NYCHRL.
NYC Guidance on Discrimination on the Basis of Gender Identity or Expression
The Guidance, quoting the NYCHRL, defines gender as “one’s actual or perceived sex and shall also include a person’s gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.” The Guidance also provides definitions for the following related terms:
- Cisgender: Denoting or relating to a person whose self-identity conforms with the gender that corresponds to their biological sex.
- Gender Identity: One’s internal deeply-held sense of one’s gender which may be the same or different from one’s sex assigned at birth. One’s gender identity may be male, female, neither, or both (e.g., non-binary).
- Gender Expression: The representation of gender as expressed through, for example, one’s name, choice of pronouns, clothing, haircut, behavior, voice, or body characteristics. Gender expression may not be distinctively male or female and may not conform to traditional gender-based stereotypes assigned to specific gender identities.
- Gender Non-Conforming: Sometimes used to describe someone whose gender expression differs from traditional gender-based stereotypes.
- Intersex: Used to refer to a person whose reproductive or sexual anatomy and/or chromosomal pattern does not fit typical definitions of male or female.
- Sex: A combination of bodily characteristics including chromosomes, hormones, internal and external reproductive organs, secondary sex characteristics, and gender identity.
- Transgender: Used to describe someone whose gender identity or expression is not typically associated with the sex assigned at birth.
Violations of the Law
The Guidance explains that the NYCHRL prohibits discrimination in employment, public accommodation, and housing, on the basis of gender identity, gender expression, transgender status, and identification as intersex. The Guidance further groups examples of such discrimination into the categories listed below.
- Failing to Use an Individuals’ Preferred Name or Pronoun – The Guidance explains that the NYCHRL requires employers use an employee’s “preferred name, pronoun and title (e.g., Ms./Mrs.) regardless of the individual’s sex assigned at birth, anatomy, gender, medical history, appearance, or the sex indicated on the individual’s identification.” The Guidance further provides that covered entities may avoid violations by creating a policy of, for example, asking employees of their preferred gender pronoun, so that no individual is singled out for such questions, as well as by updating systems to allow all individuals to self-identify their names and genders, without limiting the options for identification to male and female only.
- Refusing to Allow Individuals to Utilize Single- Sex Facilities and Programs Consistent with Their Gender – The Guidance dictates that individuals should be allowed to use single-sex facilities, such as restrooms and locker rooms, and participate in single-sex programs in accordance with their gender identity. The Guidance does not require entities to make existing bathrooms all- gender or construct additional restrooms. However, covered entities that have single-occupancy restrooms (a room with a single toilet, walls, a sink, and a door) should make clear that they can be used by people of all genders. Additionally, employee objections to sharing a facility or participating in a program with a transgender or gender non-conforming person are not a lawful reason to deny access to that transgender or gender non-conforming individual. Examples of violations include: prohibiting a transgender woman from using the women’s bathroom, or forcing a transgender or gender non-conforming person to use the single-occupancy restroom.
The Guidance suggests that covered entities may avoid violations by providing single-occupancy restrooms and providing private space within multi-user facilities for employees with privacy concerns. Further, employers “should create policies to ensure that all individuals are allowed to access the single-sex facility consistent with their gender identity or expression and train all employees on compliance with the policy, particularly all managers and employees who have contact with members of the public, and their obligation under the NYCHRL to provide non-discriminatory access to single-sex facilities including for transgender and gender non- conforming people.” According to the Guidance, employers may adopt non-discriminatory policies or codes of conduct, which do not single out transgender or gender non-conforming individuals, for single-sex facilities outlining the acceptable behavior for the use of the facilities. Finally, the Guidance suggests that covered entities post a sign in all single-sex facilities that states, “Under New York City Law, all individuals have the right to use the single-sex facility consistent with their gender identity or expression.”
- Sex Stereotyping – The Guidance prohibits employers from making decisions or policies based on widely-held and over-simplified beliefs about how individuals of a certain sex are supposed to behave. Such stereotypes include those related to behavior, clothing, hairstyle, activities, voice, mannerisms, or body characteristics. For instance, the Guidance explains that an employer may not have a policy that prohibits male employees from wearing jewelry or make-up at work.
- Imposing Different Uniforms of Grooming Standards Based on Sex or Gender – The Guidance explains that the NYCHRL goes beyond federal laws, which allow employers to have dress codes that require different attire for men and women, and prohibits employers from maintaining dress codes that apply differently to employees based on their sex or gender. Further, providing that “the fact that the grooming standard or dress code differentiates based on gender is sufficient for it to be considered discriminatory, even if perceived by some as harmless.” This includes requiring different uniforms for men and women, requiring females to wear makeup, and requiring employees of a different gender to wear uniforms specific to that gender. Employers are entitled to enforce a dress code, or require specific grooming or appearance standards, however, such restrictions or requirements may not be specific to gender or sex.
- Providing Employee Benefits that Discriminate Based on Gender – The Guidance explains that health benefit plans must offer benefits equally to all employees regardless of gender, including covering transgender care, also known as transition-related or gender-affirming care. The Guidance explains that transgender care is “medically necessary, effective, and even life- saving for many transgender people.” Other examples of violations under this category include offering benefits to opposite-sex but not same- sex spouses, or offering benefits that cover prostate cancer screening for cisgender men but not for transgender women. Notably, however, “employee benefit plans that are covered by, and in compliance with, the Employee Retirement Income Security Act and applicable federal anti-discrimination laws are also in compliance with the NYCHRL.” Moreover, an employer that has selected a non-discriminatory plan will not be liable for the denial of coverage of a particular medical procedure by an insurance company, even when that denial may constitute discrimination on the basis of gender.
- Considering Gender When Evaluating Requests for Accommodations – Employers are prohibited from considering gender when evaluating requests for accommodations for disabilities,or other requests for changes to the terms and conditions of one’s employment, which may include additional medical or personal leave or schedule changes. For example, employers should provide reasonable accommodations to individuals undergoing gender transition, including medical leave for medical and counseling appointments, surgery and recovery from gender affirming procedures, and surgeries and treatments as they would for any other medical condition.
- Engaging in Discriminatory Harassment – The Guidance explains that the NYCHRL prohibits “discriminatory harassment or violence motivated by a person’s actual or perceived gender identity or expression that attempts to interfere with, or actually interferes with, the free exercise of a legal right.”
- Engaging in Retaliation – Finally, the Guidance sets forth that retaliation against an individual for opposing discrimination or requesting a reasonable accommodation for a disability based on gender identity or expression is prohibited. Opposing discrimination includes making an internal complaint about discrimination, making an external complaint of discrimination to the Commission or another government agency, or participating in an investigation of discrimination. According to the Guidance, a retaliatory action does not need to rise to the level of materially adverse to the terms and conditions of employment. Covered entities are advised to implement internal anti-discrimination policies to educate employees of their rights and obligations with respect to gender identity and expression, train staff on these issues, and create procedures for internal reporting of alleged violations.
Procedures and Penalties
Individuals alleging violations of the NYCHRL may file complaints with the Commission’s Law Enforcement Bureau within one year of the alleged discriminatory act, or the New York State Supreme Court within three years of the alleged discriminatory act.
The Commission may impose civil penalties up to$125,000 for violations and up to $250,000 for a willful, wanton, or malicious violation. The amount of the fine depends upon the severity of the violation, the number of previous or subsequent violations, the size of the employer, and the employer’s actual or constructive knowledge of the NYCHRL. Fines are assessed in addition to other remedies allowed by the NYCHRL, such as compensatory damages. Significantly, the Commission may take the lack of an adequate anti-discrimination policy into consideration when determining liability, assessing damages, and mandating certain affirmative remedies.
NYC Caregiver Discrimination Bill
The Caregiver Discrimination Bill, No. 108-A, amends the NYCHRL to add “caregiver status” to the list of characteristics protected from discrimination, thus making discrimination based on an employee’s actual or perceived status as a caregiver unlawful.
Caregiver is defined as “a person who provides direct and ongoing care for a minor child or a care recipient.” Notably, the child can be biological, adopted, foster, or a “child for whom the caregiver has assumed a primary parental role.” A care recipient is defined as “a person with a disability who: (i) is a covered relative, or a person who resides in the caregiver’s household; and (ii) relies on the caregiver for medical care or to meet the needs of daily living.” A covered relative is a “caregiver’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent, or the child or parent of the caregiver’s spouse or domestic partner, or any other individual in a familial relationship with the caregiver as designated by the rules of the Commission.”
The law will take effect 120 days after the mayor’s signature. As enactment is expected, employers should update policies and procedures to ensure compliance.