So much for a quiet year-end for New York City employers. In the final weeks of 2015, NYC government officials took two actions that will have a significant impact on the city’s business community, first passing a bill banning “caregiver” discrimination and then, just days later, issuing sweeping guidance regarding gender identity and expression discrimination. Each of these items will be discussed below.
Ban on “Caregiver” Discrimination
On December 16, the New York City Council passed yet another amendment to the already-broad NYC Human Rights Law (NYCHRL), this time barring discrimination against “caregivers.” This means that employers may not take an adverse action (e.g., refuse to hire, fire, or demote), or otherwise discriminate against an employee with respect to the terms and conditions of employment, based on the employee’s actual or perceived status as a “caregiver.”
The amendment defines “caregiver” as a “person who provides direct and ongoing care for a minor child or a care recipient.” “Care recipient,” in turn, is defined as a person with a disability who (1) relies on the caregiver for medical care or to meet the needs of daily living, and (2) resides in the caregiver’s household or is the 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 New York City Commission on Human Rights (the Commission), the agency that enforces the NYCHRL.
Surprisingly, the version of the amendment passed by the Council reflects somewhat of a compromise with the business community, as the original version expressly required employers to make reasonable accommodations for caregivers. The amendment will take effect 120 days after Mayor Bill de Blasio signs it into law, although the Commission may take any action necessary for implementation prior to the effective date, such as adopting interpretive rules.
Given the broad definition of “caregiver,” and the number of employees “caregiver” could potentially encompass, employers should immediately review their policies and procedures to ensure compliance with the new law. Penalties for violating the “caregiver” discrimination provisions of the NYCHRL, like all other NYCHRL violations, may include back pay, front pay, emotional distress damages, uncapped punitive damages, and attorneys’ fees, as well as substantial civil penalties.
Guidance Regarding Gender Identity & Expression Discrimination
On December 21, the Commission issued sweeping guidance regarding gender identity and expression discrimination. The guidance outlines in detail what, in the Commission’s estimation, constitutes unlawful discrimination under the NYCHRL based on an individual’s actual or perceived transgender status, gender identity, self-image, appearance, behavior, or expression.
First, the guidance emphasizes that, under the NYCHRL, grooming policies, appearance standards, and dress codes that differentiate based on gender, or impose different requirements based on actual or perceived gender, are per se discriminatory. According to the guidance, “[h]olding individuals to different grooming or uniform standards based on gender serves no legitimate non-discriminatory purpose and reinforces a culture of sex stereotypes and accepted cultural norms based on gender expression and identity.”
The guidance provides, therefore, that “requiring different uniforms for men and women, or requiring that female bartenders wear makeup,” “[r]equiring employees of one gender to wear a uniform specific to that gender,” or “[p]ermitting only individuals who identify as women to wear jewelry or requiring only individuals who identify as male to have short hair,” for instance, would constitute violations of the NYCHRL.
Citing the NYCHRL’s liberal intent, the guidance also expressly rejects an exception recognized by federal law that permits disparate dress and grooming policies so long as the policies do not create an undue burden on employees. According to the Commission, gender-specific policies are unlawful under all circumstances, even if they are perceived as harmless.
Second, the guidance indicates that the NYCHRL requires employers to use an individual’s preferred name, pronoun (e.g., they/them/their/ze/hir), and title (e.g., Mr./Ms./Mrs.). This is the case regardless of “the individual’s sex assigned at birth, anatomy, gender, medical history, appearance, or the sex indicated on the individual’s identification,” or whether the individual has identification listing the preferred name or has obtained a court-ordered name change. Accordingly, the Commission recommends that employers (1) ask employees what their preferred gender pronoun is and (2) update their systems to allow all employees to self-identify their names and genders (the options for which should not be limited to male and female only, and may include androgynous, gender queer, non-binary, gender non-conforming, MTF (male to female), or FTM (female to male)).
Third, the guidance explains that the NYCHRL “requires that individuals be permitted to use single-sex facilities, such as bathrooms or locker rooms, and participate in single-sex programs, consistent with their gender, regardless of their sex assigned at birth, anatomy, medical history, appearance, or the sex indicated on their identification.” Although the NYCHRL does not require employers to make existing bathrooms gender-neutral, or to construct additional restrooms, employers that have single-occupancy restrooms should make clear that they can be used by people of all genders, regardless of whether such use makes other employees uncomfortable. In addition, it is unlawful to require an employee to use a single-occupancy restroom because of that employee’s gender identity or expression. The Commission also advises employers to 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.”
Other sections of the guidance address sex stereotyping - “expectations of how an individual represents or communicates gender to others, such as behavior, clothing, hairstyle, activities, voice, mannerisms, or body characteristics” - and the requirement that employee benefits be offered equally without regard to gender. Finally, the Commission concludes the guidance by reminding employers that entities found to be in violation of the NYCHRL’s ban on gender identity or expression discrimination may be subject to civil penalties of up to $250,000.
What’s the Takeaway for My Company?
NYC continues to push the envelope on the labor and employment law front, with some of the most employee-friendly regulations in the country. The new “caregiver” discrimination ban and gender discrimination guidance are but two of many examples. As always, therefore, NYC employers should stay in regular contact with experienced counsel to discuss these issues and to prepare a cogent plan of action to face the ever-changing legal standards head-on.