Why it matters

The New York City government was busy over the holidays, with an amendment to the Human Rights Law establishing caregivers as a protected class and the Commission on Human Rights issuing guidance on transgender rights, among other developments. The City Human Rights Law defines a caregiver as "a person who provides direct and ongoing care for a minor child or care recipient," such as an individual with a disability who lives in the caregiver's household or a covered relative who relies on the caregiver for medical care or the needs of daily living. With the recent signature of Mayor Bill de Blasio, New York City joined Westchester County and Newark, New Jersey, among other jurisdictions, with caregiver protection laws.

Just prior to the end of the year, the Commission on Human Rights released "Legal Enforcement Guidance on Discrimination on the Basis of Gender Identity or Expression," offering specific examples of conduct considered to be unlawful along with tips for employer compliance. For example, employers that refuse to use a transgender employee's favored name, pronoun, or prefix or prohibit a transgender employee from using a single-sex bathroom or locker room violate the city's law prohibiting discrimination against transgender individuals, the Commission said. Employers in New York City should familiarize themselves with the new law and the new guidance. Companies with employees outside the city should also take note because the New York State Division of Human Rights recently issued a Notice of Proposed Rule Making containing similar gender-related protections under the state Human Rights Law.

Detailed discussion

The new year in New York City will bring more changes for employers, in particular with regard to the New York City Human Rights Law. Late in 2015 the New York City Council passed a bill that added caregivers as a protected class under the Human Rights Law, prohibiting discrimination against those who care for children, elderly parents, and other members of the household. Mayor Bill de Blasio signed the bill into law on January 5, 2016.

Defining a "caregiver" as "a person who provides direct and ongoing care for a minor child or care recipient," the statute explains that a "care recipient" includes an individual 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." The definition of "care recipient" is very broad; the person being cared for need not be a member of the employee's family as long as the other requirements of the law are met. The new law does not define what constitutes "direct and ongoing care," however.

By adding caregivers as a protected category under the city's Human Rights Law, the bill prohibits discrimination on the basis of caregiver status, actual or perceived, by employers, their agents, employment agencies, and labor organizations. Because the law does not specify what constitutes discrimination or an employer's obligations with respect to caregivers, it seems very likely that the Commission on Human Rights will weigh in on this issue. The bill will take effect on May 4, 2016, adding New York City to a growing list of jurisdictions (including multiple cities in New Jersey and Westchester County, New York) that have adopted similar caregiver protection laws.

In other developments, the New York Human Rights Commission released new guidance for employers with regard to transgender employees. The "Legal Enforcement Guidance on Discrimination on the Basis of Gender Identity or Expression" offers specific examples of actions that the Commission considers discriminatory as well as best practices to achieve compliance with city law.

The guidance begins with a glossary of terms, ranging from gender identity (a separate concept from sex assigned at birth and distinct from sexual orientation) to gender expression (the representation of gender expressed through pronouns, body characteristics, or hair, for instance) to transgender (a term used to describe a broad range of identity or expression for an individual who typically associates with the sex not assigned at birth).

Several examples of unlawful discrimination were set forth by the Commission, including failing to use an individual's preferred name, pronoun or title (repeatedly calling a transgender woman "him" or "Mr." after she has made clear she prefers a female pronoun and title) and refusing to allow individuals to utilize single-sex facilities and programs consistent with their gender (such as requiring a transgender individual to provide proof of his or her gender to access a restroom).

Sex stereotyping—including imposing different uniforms or grooming standards based on sex or gender—was also frowned upon by the guidance. The Commission will find a violation of law where dress codes or appearance standards impose different requirements for individuals based on sex or gender, with employers encouraged to create gender-neutral codes and standards.

Gender should not be a consideration when evaluating a request for accommodation and employee benefits should not discriminate based on gender, the guidance noted, with harassment and retaliation similarly prohibited.

It seems likely that employers elsewhere in the state will soon need to comply with similar (albeit less detailed) regulations proposed by the state Division of Human Rights.

To read the City Council's bill, click here.

To read the Commission's guidance, click here.