NYC Vastly Broadens Gender Discrimination

January 20, 2016

Since 2002, New York City has prohibited the discrimination of any person due to his or her actual or perceived sex, or due to a person’s gender identity. The City’s Commission on Human Rights (“Commission”) has issued guidance that reflects strong protections for transgender individuals in the workplace and in places of accommodation within the City.

Anti-discrimination laws have been enforced against employers by the federal government since the Civil Rights Act of 1964. Although employers may not discriminate on the basis of sex, it is permissible under federal law for employers to treat men and women differently, so long as the policies place no undue burden on employees. Lawful policies have included requiring men to wear ties, but forbidding them from wearing dresses or makeup.

A recent trend among states and municipalities is to enact anti-discrimination laws that provide protection to employees who identify or express their gender in a manner not typically associated with their biological sex. These “transgender” employees opt to wear clothing, use behavior, or present their appearance in a way that may be expected of the opposite sex, or even of neither sex.

The Commission issued its guidance to explicitly clarify that transgenders are protected by the City’s law against discrimination on the basis of actual or perceived gender. The guidance strictly maintains that employers in New York City are to utilize only policies that treat all genders and sexes equally. It had already been widely known that the law would forbid making employment decisions or altering terms and conditions of employment on the basis of an employee’s gender. However, the Commission has outlawed a number of employment policies and practices that are highly common in the workplace:

  • Gender-specific grooming or dress codes– Although permissible under federal law, a different dress code for each gender is strictly prohibited by the Commission. If an employer uses multiple dress codes or uniforms, employees must be permitted to choose which to conform to, regardless of their gender.
  • Prohibiting use of gender-specific restroom– Facilities may maintain separate restrooms labelled for one sex or another. However, employers must allow employees to use the restroom that they feel most comfortable with. Requiring certain employees to use a separate gender-neutral restroom, requesting any kind of evidence of biological sex, or in any other way singling out an employee on the basis of gender, is unlawful. The Commission specified that an employer receiving complaints from patrons or employees that they are uncomfortable with sharing a restroom with certain people would not be a defense to a violation. This rule also applies to any other facility, such as a locker room, or to gender-specific programs, which the Commission states would include a women’s shelter.
  • Using a name or pronoun that an employee does not prefer– If Jane Smith, born a male named John Smith, wishes to be called “Jane” and referred to as “her,” the employer must follow those wishes. It would be irrelevant that Jane’s legal name is still John, unless in a context where the legal name is required by law, such as for a background check.
  • Provide benefits that are unequal amongst genders– Although many health plans are necessarily tailored to the beneficiary’s biological and anatomical characteristics, they must be offered indiscriminately. Employers may not offer discriminatory health plans, including those that do not offer transgender care. The Commission has deemed gender-affirming procedures, such as surgery or hormone therapy, to be medically necessary to transgenders and must be included in health plans. Other benefits, such as child care stipends, may not be offered to just women.

The guidelines apply not just to employers, but to any place of accommodation in New York City. Therefore, any entity that offers goods or services to the public can be found liable for discriminating against patrons, contractors, or clients. Employers will need to recognize any current employment or business policies that violate the law against gender discrimination and to take steps to become compliant. Although not an exhaustive list, the following are ways to effectively avoid common violations:

  • Provide unisex or single-occupancy restrooms– If spacial constraints permit, employers may wish to provide restrooms that accommodate only one user at a time, or even partition current restrooms in a manner that emulates the privacy of single-occupancy restrooms. Employers must be careful, however, to provide these only as a general convenience and they may not pressure any employees to use any particular restroom.
  • Enforce no policy that limits a program to a certain gender– An employer that provides a “women’s yoga” class during the day, for example, may not require an employee to provide proof of being a female to participate in the class.
  • Tailor dress codes to the needs of the firm, not to the gender of the employee– Employers who provide uniforms may still provide a separate men’s and women’s uniform, but must also give employees the option to wear either. An employer can prohibit a male employee from wearing black nail polish to work, but the policy must be equally enforced against women.
  • Ask all applicants the name and gender that they wish to be referred to– It is not discriminatory to ask if an employee prefers to be called “him” or “her.” This question, should, however, be asked indiscriminately. One suggestion would be to use the job application to discover what each applicant prefers. Employers may only ask about an applicant’s biological sex if it is required by another law. Several gender-neutral pronouns have gained popularity, and may be preferred by an employee. A common system is to use “ze,” “hir,” “hirs,” and “hirself” to replace “he/she,” “his/him/her,” “his/hers,” and “himself/herself,” respectively. Employers will need to become accustomed to any non-traditional pronouns that are requested.

Employers are required to take “immediate and appropriate corrective action” upon any supervisor or manager knowing that another employee is committing discrimination. Employers further must use reasonable diligence in ensuring that no employee unlawfully discriminates against another. A single violation of this anti-discrimination law could result in a penalty of $125,000, or double that amount for willful violations.

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