NYC Issues Transgender Discrimination Guidance

Written by Jamie Lang

On December 21, 2015, the New York City Commission on Human Rights, the agency that enforces New York City's Human Rights Law, announced new guidelines that clarify the protections afforded transgender and gender non-confirming individuals under the City's Human Rights Law. Since 2002, the Human Rights Law has provided protection to people whose "gender and self-image do not fully accord with the legal sex assigned to them at birth." It applies to employers, landlords, and business owners in New York City. The new guidelines illustrate that New York City's law offers greater protections to transgender and gender non-conforming individuals than other large cities like Washington, DC and San Francisco.

In the guidelines, the Commission provides examples of what constitutes a violation under the law and offers guidance to employers and landlords on implementing new policies that protect transgender and gender non-conforming individuals. Examples included:

  • Failing to use an individual's preferred name or pronoun. The new guidance provides that all employees have the right to use their preferred name regardless of whether they have identification in that name or have obtained a court-ordered name change. Intentional or repeated refusal to use an individual’s preferred name, pronoun or title is a violation of the law. The Commission recommends that employers create a policy of asking employees their preferred gender pronoun and allowing individuals to self-identify their names and genders.
  • Refusing to allow individuals to use single-sex facilities. Covered entities are required to permit individuals to use single-sex facilities like bathrooms and locker rooms consistent with their gender, regardless of sex assigned at birth, anatomy, medical history, appearance or sex indicated on their identification. The guidelines make clear that employers are not required to make existing bathrooms all-gender or construct additional restrooms. However, an employer cannot force a transgender or gender non-conforming person to use a single-occupancy restroom. If a covered entity has single-occupancy restrooms (ones with a single toilet, walls, sink and door) – the covered entity should make clear that they can be used by people of all genders and recommends posting a sign that states, "Under New York City Law, all individuals have the right to use the single-sex facility consistent with their gender identity or expression." The Commission specifies that the objections of co-workers are not a lawful reason to deny access to transgender or gender non-conforming individuals.
  • Imposing different uniforms or grooming standards based on sex or gender.The Commission has made clear that employers cannot require dress codes or uniforms, or apply grooming or appearance standards that impose different requirements for individuals based on sex or gender. For example, employers cannot require different uniforms for men and women. An employer may provide clothing that is more typical of a woman's blouse or a man's shirt, but cannot require an employee to wear one style over another.

The Commission also announced the penalties for violations of the law, which it had not previously articulated. Violations of the law can result in civil penalties of up to $125,000, and up to $250,000 for violations that are the result of willful, wanton, or malicious conduct. The law does not limit the amount of compensatory damages that may be awarded.

For further information on the Commission's guidance on this issue, please contact the author of this article or your attorney at Clifton Budd & DeMaria, LLP.

About the Author
Jamie Lang
Senior Associate
Jamie Lang joined the firm in February 2013. She represents and counsels employers in all aspects of labor and employment...
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