January 2022

State Updates

 

New York City Gender Self-ID rules at the State and Local level

11/04/21

Author: ADP Admin/Wednesday, November 3, 2021/Categories: Compliance Corner , State Compliance Update, New York

Background:

The New York City Human Rights Law (NYCHRL) prohibits discrimination and harassment based on gender, which includes actual or perceived sex, gender identity, and gender expression, regardless of the sex assigned to that person at birth. The NYCHRL’s discrimination provisions apply to employers with four or more employees but the gender-based harassment provisions apply to all employers.

Preferred Gender, Pronoun, and Name:

The NYCHRL requires employers to use the name, pronouns, and title (e.g., Ms./Mrs./Mx.) with which an applicant or employee self-identifies, regardless of the person’s sex assigned at birth, anatomy, gender, medical history, or appearance, according to guidance from the city’s Commission on Human Rights.

The guidance also states that individuals have the right to use and have others use their name and pronouns regardless of whether they have identification in that name or have obtained a court-ordered name change, except in very limited circumstances where certain federal, state, or local laws require otherwise (e.g., for purposes of employment eligibility verification with the federal government).

Employer Inquiries:

NYCHRL guidance provides that employers may ask an individual in good-faith for their name and gender pronouns. Covered entities may generally avoid violations of the NYCHRL by creating a policy of asking everyone what their gender pronouns are, however, employers should not single out employees to make such inquiries. Instead, employers should update their systems, intake forms, or other questionnaires to give all applicants and employees an opportunity to self-identify their gender. When doing so, employers should avoid limiting the options for self-identification to male and female only.

Compliance Recommendations:

Employers should review federal, state, and local laws, regulations, and guidance to understand their rights and obligations regarding gender identity and expression.

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