New York City is finishing off a strong year on the employment law front.  Earlier this year, the City Council passed laws that banned the box and all but eliminated credit checks.  It also passed a law requiring employers to offer their employees pre-tax transit benefits and instituted a paired testing discrimination investigation program.  The Department of Consumer Affairs continued to provide guidance on the paid sick leave law, while the Commission on Human Rights welcomed a new commissioner and new initiatives designed to enhance the Commission’s enforcement efforts. It also released enforcement guidance on the ban the box and credit check laws.  Now, as the year comes to a close, we cover the latest flurry of legislative and administrative activity in this three-part series.  First up: Enforcement Guidance on Gender Identity/Expression Discrimination. 

The City Commission on Human Rights has issued broad-based guidelines that attempt to clearly define the contours of gender identity and gender expression discrimination in the workplace – an issue with which many employers continue to struggle.  The guidance provides “bold and explicit” examples of actions that the Commission considers discriminatory and offers best practices for complying with the Human Rights Law.

New York City employers should pay careful attention to these new guidelines as they will impact long-standing workplace policies, practices and behaviors, including dress codes, uniforms, and grooming standards.  We summarize the guidance below.

Background

In 2002, the City Council amended the New York City Human Rights Law to define “gender” to include discrimination based on an individual’s “actual or perceived sex . . . a person’s 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 legal sex assigned to that person at birth.”  Despite expanding the definition more than 13 years ago, a recent survey revealed that up to 75% of transgender or gender non-conforming city residents reported harassment or mistreatment in the workplace.  The enforcement guidance is in part a response to that staggering statistic and is intended to show employers that the Commission will have a zero tolerance policy towards this type of discrimination.

Understanding Gender-Based Vocabulary May Go a Long Way In Understanding Gender-Based-Discrimination

What does gender-based discrimination mean?  Who exactly falls into this protected class?  To better understand how to answer that question the guidance does a good job of providing the reader with a glossary of gender-based terms, including:

• Cisgender: an adjective denoting or relating to a person whose self-identity conforms with the gender that corresponds to their biological sex, i.e., someone who is not transgender.

• Gender Identity: one’s internal deeply-held sense of one’s gender which may be the same or different from one’s sex assigned at birth. One’s gender identity may be male, female, neither or both, e.g., non-binary. Everyone has a gender identity, which is distinct from their sexual orientation.

• 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 expression may not be distinctively male or female and may not conform to traditional gender-based stereotypes assigned to specific gender identities.

• Gender: an individual’s actual or perceived sex, 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 at birth.

• Gender Non-Conforming: an adjective sometimes used to describe someone whose gender expression differs from traditional gender-based stereotypes. Not all gender non-conforming people are transgender. Conversely, not all transgender people are gender nonconforming.

• Intersex: a term used to refer to a person whose reproductive or sexual anatomy and/or chromosomal pattern does not fit typical definitions of male or female. There are many different medical diagnoses or conditions that an intersex person may have.

• Sex: a combination of bodily characteristics including chromosomes, hormones, internal and external reproductive organs, secondary sex characteristics, and gender identity. Most people are assigned the sex of male or female at birth based on the appearance of their external genitalia.

• Transgender: an adjective used to describe someone whose gender identity or expression is not typically associated with the sex assigned at birth. It can be used to describe people with a broad range of gender identities or expressions.  Someone who identifies their gender as androgynous, gender queer, non-binary, gender non-conforming, MTF (male to female), or FTM (female to male) may also consider themselves to be transgender.

From this glossary (and this even more expansive glossary from The Guardian), employers can see that gender-based discrimination goes beyond simple transgender discrimination – which is the way many people think about it – and that the meaning of transgender itself is broad and nuanced.

The Commission Provides Numerous Specific Examples of Acts it Considers Gender-Based Discrimination

The Commission provided the following examples designed to show employers the types of behaviors that it would consider gender-based discrimination.

1. Failing To Use an Individual’s Preferred Name or Pronoun or Title.

This includes failing to use one’s preferred name, pronoun and title (i.e. Mr. ) regardless of one’s sex assigned at birth, anatomy, gender, medical history, appearance or the sex indicated on one’s ID.  It means referring to someone as they/them/theirs or “ze”/“hir” (popular gender-free pronouns) rather than the more traditional he/she, him/her his/hers.  It means the right to be called a name no matter what one’s official ID says.

You may, however, ask someone their preference without violating the law; in fact, you can go so far as to create a policy asking everyone their preferred gender pronoun and update your systems to account for your workers’ preferred names and genders (which should not be limited to male or female).

Specific examples of prohibited actions include:

• Repeatedly calling a transgender woman “him” or “Mr.” after she has made clear which pronouns and title she uses.

• Calling a woman “Mr.” because her appearance is aligned with traditional gender-based stereotypes of masculinity.

• Refusing to call a transgender woman her preferred name, Jane, because her identification says that her first name is John.

• Requiring an individual to provide information about their medical history or proof of having undergone particular medical procedures in order to use their preferred name, pronoun, or title.

2. Refusing To Allow Individuals To Utilize Single-Sex Facilities and Programs Consistent with Their Gender.

On this one, it does not matter if other employees object, but employers are permitted to provide a “private space” within multi-user facilities for anyone who has privacy concerns.  Further, the law does not require employers to make bathrooms “all-gender” or construct additional bathrooms.  And those with single occupancy bathrooms should make clear that they can be used by people of all genders.

Specific examples of prohibited actions include:

• A women’s shelter may not turn away a woman because she looks too masculine, nor may a men’s shelter deny service to a man because he does not look masculine enough.

• Prohibiting a transgender woman from using the women’s bathroom.

• Requiring a transgender or gender non-conforming individual to provide proof of their gender in order to access the appropriate single-sex program or facility.

• Requiring an individual to provide identification with a particular sex or gender marker in order to access the single-sex program or facility corresponding to their gender.

• Barring a transgender or gender non-conforming person from a program or facility out of concern that they will make others uncomfortable.

• Forcing a transgender or gender non-conforming person to use a single-occupancy restroom when a private space within a multi-user facility is available.

In addition, the Commission encourages employers to:

• create policies to ensure that all individuals can use any single-sex facility consistent with their gender expression or identity, and to train their employees (especially managers) regarding this policy.

• post a sign in single-sex facilities stating, “Under New York City Law, all individuals have the right to use the single-sex facility consistent with their gender identity or expression.”

Work with employees concerned for their safety to devise a safety plan.  For example, if a transgender resident requests assignment to a facility corresponding to their sex assigned at birth instead of a placement corresponding to their gender identity, that request should be honored.

3. Sex Stereotyping.

Employers cannot require their employees to conform to sex stereotypes, which are widely-held over-simplified expectations about how people of a particular sex or gender should appear or act within certain norms of masculinity or femininity.  This includes requiring an employee to dress, sound or look a certain way or assigning certain roles to certain employees based on their sex.

Specific examples of prohibited actions include:

• Using anti-gay epithets when speaking to or about an individual based on their non-conformity with gender norms.

• Overlooking a female employee for a promotion because her behavior does not conform to the employer’s notion of how a female should behave at work.

• Enforcing a policy in which men may not wear jewelry or make-up at work.

4. Imposing Different Uniforms or Grooming Standards Based on Sex or Gender.

The Commission will consider it a violation of the law when employers require dress codes or uniforms or apply grooming or appearance standards that impose different requirements for individuals based on sex or gender.  This differs from federal law which permits such differences if they don’t impose an undue burden.  The Commission takes the view that gender-based differences in this regard do not serve any legitimate non-discriminatory purpose, even if harmless, and “reinforce a culture of sex stereotypes and accepted cultural norms based on gender expression and identity.”

The answer to complying with these requirements, the Commission says, is to create gender-neutral dress codes and grooming standards.  For example, if you want employees to have short hair, then all employees must have short hair regardless of gender.  Or, a better alternative may be to provide the employees with a menu of options from which to choose.  Those options can include choices that have traditionally applied to both female and male employees.

Specific examples of prohibited actions include:

• requiring different uniforms for men and women, or requiring that female bartenders wear makeup.

• Requiring employees of one gender to wear a uniform specific to that gender.

• Permitting only individuals who identify as women to wear jewelry or requiring only individuals who identify as male to have short hair.

• Applying a rule that requires all servers to always have long hair tied back in a ponytail or away from their faces unequally based on gender.

• Permitting female but not male residents at a drug treatment facility to wear wigs and high heels.

• Requiring all men to wear ties in order to dine at a restaurant.

5. Providing Employee Benefits that Discriminate Based on Gender.

This includes denying or excluding services based on gender.  Your health plans must cover transgender care (i.e. transition-related care or gender affirming care).  The Commission warns employers to check their plans and, if not already included, to obtain a health plan that includes comprehensive coverage for transgender people, which includes plans that follow recognized professional standards of medical care for transgender individuals; for example, the standards of care of the World Professional Association for Transgender Health.  “Because there are few health care providers currently performing certain transition-related and/or gender-affirming care,” the Commission also encourages employers to select plans that “do not prohibit, place limits on, or have significantly higher co-pays or low reimbursements rates for out-of-network care.”

Specific examples of prohibited actions include:

• Employers offering health benefits to the opposite-sex spouses of employees, but not same-sex spouses.

• Employers offering health benefits that do not cover care when an individual’s sex assigned at birth or gender otherwise recorded in a medical record or insurance plan is different from the one to which health services are ordinarily or exclusively available. For example, offering benefits that cover prostate cancer screening for cisgender men but not for transgender women.

• Employers offering health benefits that categorically exclude from coverage, or limit coverage for, health services related to gender transition.

• Employers offering any other employee benefits that discriminate on the basis of gender.  For example, offering a stipend for child care to female but not male employees.

6. Considering Gender When Evaluating Requests for Accommodations.

Employers should treat leave requests to address medical or other health care needs related to an individual’s gender identity in the same manner as all other requests.  Employers should provide reasonable accommodations to individuals undergoing gender transition, including leave for medical and counseling appointments, surgery and recovery from gender affirming procedures, and other similar surgeries and treatments in the same manner as they would for any other medical condition.

Specific examples of prohibited actions include:

• An employer who has a policy of routinely granting unpaid medical leave upon request to individuals who have been working for the employer for over a year, but who refuses to honor that policy when the request is made by a transgender individual.

• When an employer or covered entity permits a reasonable accommodation for a cisgender woman seeking reconstructive breast surgery deemed medically necessary but refuses that same accommodation when requested by a transgender woman undergoing the same medically necessary surgery.

• Requesting medical documentation to verify leave time from transgender employees or participants, but not cisgender employees or participants.

• Determining the retention and accrual of benefits, such as seniority, retirement, and pension rights, during personal or medical leave periods for employees based on gender.

7. Engaging in Discriminatory Harassment.

This includes harassment motivated by a person’s actual or perceived gender identity or expression that attempts to interfere with, or actually interferes with, the free exercise of a legal right.  It includes violence, the threat of violence, a pattern of threatening verbal harassment, the use of force, intimidation or coercion, defacing or damaging real property and cyberbullying.

8. Engaging in Retaliation.

The Commission notes that the Human Rights Law protects against retaliation for opposing discrimination or requesting a reasonable accommodation for a disability based on gender identity or expression.  The Commission says employers are less likely to engage in retaliation if they implement certain measures, including:

internal anti-discrimination policies to educate employees . . . of their rights and obligations under the NYCHRL with respect to gender identity and expression and regularly train staff on these issues. Covered entities should create procedures for employees . . . to internally report violations of the law without fear of adverse action and train those in supervisory capacities on how to handle those claims when they witness discrimination or instances are reported to them by subordinates.  Covered entities that engage with the public should implement a policy for interacting with the public in a respectful, non-discriminatory manner consistent with the NYCHRL, respecting gender diversity, and ensuring that members of the public do not face discrimination, including with respect to single-sex programs and facilities.

What’s Next For Employers?

We encourage all employers to read the guidance to better understand their obligations under the law.  We also remind employers that compliance is paramount, as the Commission can impose civil penalties of up to $125,000 for violations of the Human Rights Law and up to $250,000 for violations that result from “willful, wanton or malicious” conduct, while other damages are available as well, including back and front pay and compensatory and punitive damages.  Employees may also sue directly and in addition to the above damages, they may be eligible to recover their attorneys’ fees.

Employers should think about the necessary changes that must be made to their policies, procedures and practices – from things as common as updating their handbooks and training their staff appropriately to items that usually act as mere afterthoughts like changing the signs on their bathroom doors and referring to someone as “he” or “she.”  Employers should also take a serious look at their current grooming/dress code standards and make any necessary changes.  The New Year serves as a good opportunity to assess the impact of these new guidelines and make the necessary changes.