In December 2015, we reported that the New York City Commission on Human Rights released its Legal Enforcement Guidance on the [sic] Discrimination on the Basis of Gender Identity or Expression. Now, the New York State Division of Human Rights (Division) has also enacted regulations through the New York State Human Rights Law (NYSHRL) providing transgender individuals with protection against discrimination and harassment in employment, among other areas. See New York Code of Rules and Regulations (NYCRR)§ 466.13. Although the NYSHRL has long prohibited discrimination and harassment on the basis of sex and sexual orientation, the law did not expressly prohibit discrimination and harassment on the basis of gender identity and transgender status. In October2015, however, New York Governor Andrew M. Cuomo issued proposed regulations addressing the issue. These proposed regulations have now taken effect.
The regulations, Section 466.13 Discrimination on the Basis of Gender Identity, provide that the NYSHRL’s prohibitions against discrimination and harassment on the basis of sex, in all areas of jurisdiction where sex is a protected category, now also prohibit discrimination and harassment on the basis of gender identity or transgender status. The regulations define “gender identity” as “having or being perceived as having a 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 sex assigned to that person at birth.” A “transgender person” is defined as “an individual who has a gender identity different from the sex assigned to him or her at birth.”
The regulations also provide that the NYSHRL’s prohibitions against disability discrimination and harassment include a prohibition against discrimination or harassment on the basis of an individual’s gender dysphoria. Under the regulations, gender dysphoria is a “recognized medical condition related to an individual having a gender identity different from the sex assigned to him or her at birth.” The regulations further specify that disability discrimination includes refusal to provide reasonable accommodations for persons with gender dysphoria, when such accommodations are requested, are necessary, and are otherwise in accordance with the regulations concerning reasonable accommodations under the NYSHRL.
Under the NYSHRL, individuals who believe that they have been harassed or discriminated against may file complaints in state court or with the Division, without charge. If the Division determines that there is probable cause to believe harassment or discrimination has occurred, the Commissioner of Human Rights (Commissioner) will decide the case after a public hearing, and may award the job or other benefits, back and front pay, compensatory damages for mental anguish, civil fines, and penalties. The Commissioner may also require policy changes and training as appropriate. Civil fines and penalties can reach $50,000, or $100,000 if the discrimination is found be “willful, wanton or malicious” and, unlike under federal law, compensatory damages to individuals are not capped.