On December 21, 2015, the New York City Commission on Human Rights (Commission) issued Legal Enforcement Guidance (Guidance) clarifying New York City’s prohibitions against discrimination on the basis of gender identity and gender expression.   Discrimination based on gender identity and expression in employment, housing and public accommodations has been illegal under the New York City Human Rights Law (NYCHRL) since 2002.  According to the accompanying press release, the Guidance is intended to make clear, through specific examples, what the Commission considers gender identity and gender expression discrimination under the City law and to offer best practices to employers and other stakeholders on how to comply with the law.  The Guidance also solidifies New York City’s place as having one of the most protective laws in the country for transgender and other gender non-conforming individuals.

Definitions

The Guidance begins with definitions of key–and often misunderstood–terms, including:

  • Cisgender—one whose self-identity conforms to their biological sex
  • Gender identity—a deeply-held sense of one’s gender, which may or may not be the same as one’s sex assigned at birth
  • 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—one’s actual or perceived sex, gender identity, self-image, appearance, behavior or expression, regardless of whether it is different from that traditionally associated with the sex assigned at birth
  • Gender non-conforming—one whose gender expression differs from traditional gender-based stereotypes
  • Transgender—one whose gender identity or expression is not typically associated with the sex assigned at birth

Examples of Violations

The Guidance provides specific examples of gender stereotyping and other behaviors by employers, landlords and business owners that the Commission would consider discrimination based on gender identity, gender expression and/or transgender status, including:

Intentionally failing to use an individual’s preferred name or pronoun:   According to the Guidance, the NYCHRL requires employers and other covered entities to use an individual’s preferred name, pronoun (not just he/she, but also they or ze/hir, as preferred by some transgender and non-conforming individuals), and title (e.g., Mr./Ms.), regardless of the individual’s sex assigned at birth, appearance or the sex indicated on the individual’s identification.   While covered entities may use or request a form of identification to corroborate an individual’s identity for legitimate business purposes, transgender or gender non-confirming individuals may not subject to a higher level of scrutiny.  Additionally, individuals have a right to use their preferred name regardless of whether they have obtained a court-ordered name change.  Similarly, an individual may not be asked to provide information about their medical history or proof of having undergone particular medical procedures in order to use their preferred name or pronoun.

  • Practical guidance: The Commission recommends that employers and other covered entities create a policy of asking everyone what their preferred gender pronoun is and update systems to allow all individuals to self-identify their names and genders (not limited to male and female).

Refusing to allow individuals to use single-sex facilities and programs consistent with their gender identity:   According to the Commission, individuals must be permitted to use single-sex facilities like bathrooms and locker rooms, and participate in single-sex programs, consistent with their gender, regardless of sex assigned at birth, anatomy, medical history, appearance, or the sex indicated on their identification.  Covered entities may, but are not required to, make existing bathrooms all-gender or to construct additional restrooms.  To the extent covered entities have single-occupancy restrooms (a room with a single toilet, walls, a sink and a door), they should make clear that they can be used by people of all genders.  The Commission considers it unlawful to deny access to facilities or programs to transgender or gender non-conforming individuals (like barring a transgender woman from a women’s restroom) because others object or may feel uncomfortable.

  • Practical guidance: The Commission recommends that employers and other covered entities provide, to the extent possible, single-occupancy restrooms and other private space within multi-user facilities, such as locker rooms, for anyone with privacy concerns.  While individuals who are transitioning or gender non-conforming may wish to use these private spaces, they cannot be required to do so.   The Commission also recommends that covered entities create policies to ensure that individuals are allowed to access their preferred single-sex facility and train all employees, especially managers and those who have contact with members of the public, regarding non-discriminatory access to single-sex facilities and programs.  The Commission also 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.”

Enforcing dress codes, uniforms, and grooming standards based on sex or gender:  According to the Guidance, employers and other covered entities may not require dress codes or uniforms, or apply grooming standards that impose different requirements based on sex or gender.  This restriction differs from federal law, which generally permits differing standards based on sex or gender so long as they do not impose an undue burden, such as requiring that men wear ties or requiring different hair lengths for men and women.  Thus, while covered entities may still enforce a dress code or grooming or appearance standards,  the Commission will consider the following  gender-based distinctions to be unlawful under the NYCHRL:  requiring different uniforms for men and women or that employees of one gender wear a uniform specific to that gender, requiring that female bartenders wear makeup, permitting only individuals who identify as women to wear jewelry, requiring only individuals who identify as male to have short hair, and requiring men to wear ties and/or women to wear skirts.  Employers and other covered entities cannot defend gender or sex-based grooming and appearance standards on the basis of customer or client preference.

  • Practical guidance: The Commission recommends that covered entities create gender neutral dress codes and grooming standards, such as requiring individuals to wear their hair short or pulled back, or requiring workers to wear a pantsuit or skirt suit.  In addition, covered entities may provide different uniform options that are typically male or female (g., a blouse-style shirt for women and a loose button-down shirt for men), but may not require an employee to wear one style over another.

Providing employee benefits that discriminate based on gender:  According to the Guidance, an employer may not deny or exclude services on the basis of gender.  Thus, to be non-discriminatory, health benefit plans not covered by ERISA must cover transgender care, also referred to as transition-related care or gender-affirming care.   Such care may include hormone replacement therapy, voice training or surgery, among other treatments.  (It should be noted that federal and New York State laws already require that certain types of insurance plans cover medically necessary transition-related care.)  The Guidance makes clear, however, that to the extent an employer chooses a non-discriminatory plan, it will not be liable for the denial of coverage of a particular medical procedure by an insurance company.

  • Practical guidance: Covered entities should review their existing health benefit plans to make sure they provide an option that includes comprehensive coverage for transgender individuals.   Recognizing that there are few health care providers currently performing certain transition-related and/or gender-affirming care, the Commission recommends that employers select plans that do not prohibit, place limits on, or have significantly higher co-pays or low reimbursement rates for out-of-network care.

Failing to provide reasonable accommodations for individuals undergoing gender transition:  According to the Commission, employers may not consider gender when evaluating requests for accommodations for disabilities or for medical or health reasons.   Thus, the Guidance provides that covered entities must provide reasonable accommodations to individuals undergoing gender transition, including medical leave for medical and counseling appointments, surgery, and recovery from gender affirming procedures, surgeries and treatments, as they would for any other medical condition.  The Guidance provides the following examples of employer actions that would be unlawful:  requesting medical documentation to verify leave time from transgender employees but not cisgender employees, and permitting a reasonable accommodation for a cisgender woman seeking reconstructive breast surgery deemed medically necessary but denying same for a transgender woman undergoing the same medically necessary surgery.

  • Practical guidance: The Commission recommends that employers create internal procedures to evaluate all requests for accommodations in a fair and non-discriminatory manner.

Other violations:  The Guidance provides examples of other types of conduct toward transgender and other gender non-conforming individuals that it would deem to be a violation of the NYCHRL, including sex stereotyping, discriminatory harassment and retaliation.  The Commission recommends that employers review and update their anti-discrimination policies and complaint procedures to educate employees of their rights and obligations under the NYCHRL regarding gender identity and expression and to regularly train staff on these issues.

Penalties

Consistent with existing provisions of the NYCHRL, the Guidance provides that in an administrative action, the Commission 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.  These penalties are in addition to other remedies available to successful claimants under the NYCHRL, including back and front pay, compensatory and punitive damages, and attorneys’ fees and costs.

Next Steps

As employers, business owners, and landlords in New York City enter 2016, they should add to their list of new year’s resolutions a review of relevant policies, procedures and benefit plans, as well employee training, to ensure that the rights of transgender and other gender non-conforming individuals are being protected in accordance with the NYCHRL and the Commission’s Guidance.