The guidance may help employers nationally comply with the trend toward protecting transgender individuals’ rights.
Despite their increasingly positive representation in US media and culture (e.g., Caitlyn Jenner and the characters in the TV show Transparent), people who identify as transgender report high incidences of workplace harassment and other adverse employment actions attributable to their gender identity. A recent survey by the National Center for Transgender Equality and the National Gay and Lesbian Task Force found that 75% of transgender or gender nonconforming New Yorkers reported harassment and mistreatment in the workplace because of their gender identity. At the same time, more than 78% of those who transition from one gender to another feel that their job performance improves after their transition.
People who identify as transgender or gender nonconforming are now expressly protected against workplace discrimination and harassment by laws in 19 states and the District of Columbia and more than 225 municipalities nationwide. Additionally, although the federal employment antidiscrimination law known as Title VII does not mention gender identity or transgender status, a number of federal courts have recently expanded Title VII’s gender protections to include people who are discriminated against for “failing to act in accordance and/or identify with their perceived sex or gender.” Other federal courts have provided more outright protection under Title VII for transgender individuals. For example, in the 2015 case Cooper v. Micros Systems, the US District Court for the District of Maryland noted that discrimination against transgender individuals is a cognizable claim of gender discrimination under Title VII.
Given this nationwide trend to protect transgender rights and the apparent high incidence of bias and harassment against transgender individuals, employers must understand how to navigate a number of common issues that involve transgender people in the workplace. New York City’s recently issued enforcement guidance provides a blueprint for employers to protect individuals’ rights with respect to gender identity and expression.
New York Offers Practical Guidance for Employers
New York City law has prohibited discrimination based on gender identity and transgender status for more than a decade. On December 21, 2015, the New York City Commission on Human Rights (NYCCHR) issued legal enforcement guidance that elaborates on the intent and scope of this law. The new city guidance comes on the heels of an October 2015 executive action in which New York Governor Andrew Cuomo proposed statewide regulations to protect transgender individuals against discrimination.
The city guidance provides detailed examples of violations and employer best practices. Most notably, it provides (i) an explanation of legislative intent, (ii) definitions of protected classifications under the law, (iii) examples of violations of the law, and (iv) penalties in administrative actions (in addition to those remedies available to plaintiffs in private civil actions). Employers should consider updating their current policies and practices to comply with this new guidance—particularly those policies related to bathrooms, dress and grooming codes, employee benefit plans, and accommodations for transition-related medical conditions or treatment.
The NYCCHR guidance defines important terms in the law “to help people understand the . . . guidance as well as their rights and responsibilities under the [law].” The guidance defines commonly used terms such as “gender identity” and “sex,” as well as less commonly used terms such as “cisgender,” which means “a person whose self-identity conforms with the gender that corresponds to their biological sex.” “Cisgender” serves as an equal to transgender and is meant to eliminate the distinction between “transgender” and “normal.”
Examples of Violations
The guidance clarifies that discrimination occurs when individuals are treated “less well than others on account of their gender.” The new guidance lists several ways that employers could violate the law on the basis of gender identity and expression, including the following:
- Refusing to allow individuals to use single-sex facilities (including bathrooms) and engage in single-sex programs consistent with their gender identity. For example, prohibiting a transgender woman from using a women’s restroom out of concern that she will make others uncomfortable.
- Implementing dress codes, uniforms, and grooming standards that impose different requirements based on sex or gender. For example, enforcing a policy that requires men to wear ties or women to wear skirts. Employers may impose dress codes generally, as long as the restrictions are not specific to gender or sex.
- Intentionally failing to use an individual’s preferred name, pronoun, or title. For example, repeatedly calling a transgender woman “him” or “Mr.” after she has made clear that she prefers female pronouns and a female title. Asking someone what his or her preferred name or pronoun is does not violate the New York City Human Rights Law (NYCHRL). The guidance briefly addresses the issue of pronoun use by identifying as options the grammatically controversial use of “they/them/theirs” to refer to individuals, as well as the preference of some transgender and/or gender nonconforming individuals to use the “gender-free” pronouns “ze” and “hir.”
- Discriminating based on an individual’s failure to conform to sex stereotypes. For example, overlooking a female employee for a promotion because her behavior, hair, voice, clothing, activities, mannerisms, or body characteristics do not conform to conventional gender stereotypes.
- Failing to provide employee health benefits that cover gender-affirming care.
- Failing to provide reasonable accommodations for individuals who undergo gender transition, including medical appointments and recovery, where such reasonable accommodations are provided to other employees.
In addition to damages available to plaintiffs in private civil actions, the NYCCHR may impose civil penalties of up to $125,000 for violations and up to $250,000 for violations that are the result of willful, wanton, or malicious conduct. The penalty may be influenced by a number of factors, including the violation’s severity, previous or subsequent violations, an employer’s size, and an employer’s actual or constructive knowledge of the NYCHRL. The NYCCHR may consider the lack of an adequate antidiscrimination policy a factor in determining liability, assessing damages, and mandating certain affirmative remedies.
Employer Best Practices
Employers should consider updating their current policies and practices to comply with this new guidance. Specifically, employers should consider doing the following:
- Instituting a policy of asking employees what their preferred gender pronoun is.
- Training staff to maintain an environment free from sex stereotyping.
- Wherever possible, providing single-occupancy restrooms and private space within multiuser facilities for anyone who has privacy concerns. The city recommends that companies 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.” Although some employees may object to sharing a facility or participating in a program with a gender nonconforming person, such objections are not a lawful reason to deny access to that transgender or gender nonconforming individual.
- Imposing gender-neutral dress codes and grooming standards.
- Selecting healthcare plans that follow recognized professional standards or medical care for transgender individuals.
- Creating internal procedures to evaluate all accommodation requests in a nondiscriminatory manner. Staff should be regularly trained on these issues to ensure that gender-affirming medical care is handled the same as any other medical condition.