New York State and New York City Guidance Focus Transgender Discrimination


New York State and New York City have issued expansive new guidelines to protect the rights of transgender and gender non-conforming individuals.

NYSDHR’s Regulations Ban Transgender Discrimination

The New York State Division of Human Rights adopted new regulations, effective January 20, 2016, that ban discrimination and harassment against transgender people and affirm that transgender individuals are protected under New York State’s Human Rights Law. The new regulations expand the definition of “sex” under New York state law to include gender identity and transgender status.

The new regulations apply to public and private employers throughout the state.

These regulations were first introduced by Governor Andrew Cuomo in October, 2015 — marking the first time any governor has issued statewide regulations to prohibit harassment and discrimination on the basis of gender identity, transgender status or gender dysphoria. (For more, see our article, New York Enacts Gender Equity Laws.) “Today we are sending the message loud and clear that New York will not stand for discrimination against transgender people,” Governor Cuomo said at the time.

The regulations confirm that the Division of Human Rights will accept and process Human Rights Law complaints alleging discrimination based on gender identity, sex, disability, and other unlawful discrimination against transgender individuals.

In addition to damages for back and front pay, compensatory damages for mental anguish, civil fines and penalties, the Commissioner of Human Rights may award civil fines and penalties of up to $50,000, or up to $100,000 if the discrimination is found to be “willful, wanton or malicious.” The Division also may require policy changes and training as appropriate and, unlike under federal employment discrimination law, compensatory damages to individuals are not capped.

City Commission Guidance on Gender Identity Discrimination

On December 21, 2015, the New York City Commission on Human Rights, responsible for enforcing the New York City Human Rights Law (“NYCHRL”), issued a detailed legal enforcement guidance on transgender discrimination, reiterating that gender discrimination, or being treated “less well than others on account of gender,” includes discrimination or harassment based on gender, gender identity, gender expression, or transgender status.

The guidance includes specific violations and best practices for compliance and was described by Mayor Bill de Blasio’s office as making the NYCHRL “one of the strongest in the nation in protecting the rights of transgender and gender non-conforming individuals.” The NYCHRL (and the guidance) applies to employment, public accommodations, and housing. We discuss the employment-related guidance and its impact on NYC employers below.

New York City Human Rights Commissioner Carmelyn Malalis has stated that the Commission intends to “aggressively” enforce the protections in order to ensure the safety of transgender and gender non-conforming individuals.

The guidance provides eight specific violations of the NYCHRL related gender discrimination. A summary of the violations, the Commission’s examples and best practices recommendations follows.

1) Failing to Use an Individual’s Preferred Name or Pronoun

2) Refusing to Allow Individuals to Utilize Single-Sex Facilities, Programs Consistent with Their Gender

3) Sex Stereotyping

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

5) Providing Employee Benefits that Discriminate Based on Gender

6) Failing to Consider Gender When Evaluating Requests for Accommodations

7) Engaging in Discriminatory Harassment

8) Engaging in Retaliation

9) Additional Recommendations

10) Commission Penalties

In addition to back and front pay, compensatory and punitive damages, potential penalties for violations include:

Recommendations

The City Commission and the NYS Division clearly intend to strictly enforce the regulations. Employers should consider adopting a comprehensive transgender policy, which should incorporate a gender transition plan. While important, simply adding gender identity to the list of protected groups under the company’s harassment policy may no longer be sufficient to defend such claims.

In order to prevent any discrimination against transgender and gender-nonconforming employees, it is essential to change the workplace culture.


Jackson Lewis P.C. © 2024
National Law Review, Volumess VI, Number 26