Overview: Protections for transgender, non-binary, and gender non-conforming employees in New York have been given a boost. Significant changes to the New York City Human Rights Law (NYCHRL) will expand the scope of prohibited discriminatory conduct.
Details:
NYCHRL Rule Changes Generally
The New York City Commission on Human Rights (NYCCHR) adopted rules that amend and significantly broaden protections against workplace discrimination based on an individual’s gender, including gender identity or gender expression. The rule changes amend the definitions of key terms previously omitted or undefined by the NYCHRL. The rule changes also include new examples of discriminatory conduct, such as imposing different dress or grooming standards based on gender. The rules were proposed in September 2018 and will go into effect on March 9, 2019.
New Examples of Discriminatory Conduct
The new NYCHRL rules provide examples of unlawful discriminatory practices based on the new, broader definition of gender. Examples include:
- Deliberately refusing to use an individual’s self-identified name, pronoun, or title, as in the following situations:
- Refusing to allow individuals to use single-gender facilities or single-gender programs consistent with their gender identity;
- Imposing different dress or grooming standards based on gender (except for actors required to wear gender-specific costumes if required by a role);
- Denying, limiting, or excluding employees from benefits or services based on gender; and
- Using gender as a basis for refusing a request for accommodation for disability or other request for changes to the terms or conditions of employment.
The rule amendments make clear that the list of examples does not rule out other potential violations of the NYCHRL.
New Definitions for Key Terms
The NYCHRL rules amend a number of definitions and effectively broaden the scope of covered individuals. While the NYCHRL has long-prohibited workplace discrimination based on gender identity or expression, the new rules add prohibitions against discrimination based on an individual’s “actual or perceived” gender or “other gender-related characteristics.”
The rule changes also set out a number of new definitions for gender-related terms described in the amendments:
- “Cisgender” is a term describing “a person whose gender identity conforms with their sex assigned at birth.”
- “Gender” is defined as “includ[ing] actual or perceived sex, gender identity and gender expression, including a person’s actual or perceived gender-related self-image, appearance, behavior, expression, or other gender-related characteristic, regardless of the sex assigned to that person at birth.”
- “Gender expression” is the “representation of gender as expressed through one’s name, pronouns, clothing, hairstyle, behavior, voice, or similar characteristics ….”
- “Gender non-conforming” is “a term used to describe a person whose gender expression differs from gender stereotypes, norms, and expectations in a given culture and historical period ….”
- “Intersex” is defined as “a term used to refer to a person whose sex characteristics … do not conform to a binary construction of sex as either male or female.”
- “Non-binary” is “used to describe a person whose gender identity is not exclusively male or female. For example, some people have a gender identity that blends elements of being a man or a woman or a gender identity that is neither male or female.”
- “Sex” is defined as “a combination of several characteristics,” including, but not limited to, “chromosomes, hormones, internal and external reproductive organs, facial hair, vocal pitch, development of breasts, and gender identity.”
- “Transgender” is “a term used to describe a person whose gender identity does not conform with the sex assigned at birth.”
The effect of the new definitions is to broaden the definition of “gender” in the NYCHRL to cover a wider range of individuals and situations.
GENDA Enacted in New York State
The new NYCHRL rules follow New York State’s enactment of Gender Expression Non-Discrimination Act (GENDA), which adds “gender identity or expression” as protected categories in the New York State Human Rights Law (NYSHRL). GENDA went into effect on February 25, 2019. The NYSHRL now defines “gender identity or expression” as “a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-based characteristic regardless of the sex assigned to that person at birth, including but not limited to the status of being transgender.” Under existing protections in the NYSHRL, employers found liable for discrimination may be responsible for back pay and compensatory damages.
Action Required: Covered employers should ensure that their nondiscrimination and anti-harassment policies include gender identity and expression (including transgender status) as a protected characteristic, and should train employees on the new law. Additionally dress code, code of conduct, and other policies should be evaluated to determine whether they should be updated.
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* Produced in Partnership with Jackson Lewis P.C.
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