New Guidance from New York City Human Rights Commission on Gender Identity and Expression Discrimination

The New York City Commission on Human Rights (the “Commission”) issued a guidance document (the “Document”) in late December 2015 regarding discrimination based on gender identity and gender expression, both of which are prohibited in employment and other areas under the New York City Human Rights Law (NYCHRL). The Document has generated some strident responses in opposition, but all the Commission has done is clarify laws that have been in place in New York City since 2002. It offers useful guidance on workers’ rights and remedies, including hypothetical examples of prohibited discriminatory acts.

In April 2002, the New York City Council passed the Transgender Rights Bill, which amended the NYCHRL’s definition of “gender” to include those whose “gender identity…is different from that traditionally associated with the legal sex assigned to that person at birth.” N.Y.C. Admin. Code § 8-102(23). At least 18 states and the District of Columbia have enacted statutes prohibiting various forms of discrimination based on gender identity and expression. See, e.g. N.J. Rev. Stat. § 10:5-12(a), Conn. Gen. Stat. § 46a-60(a)(1). At the state level, New York does not expressly prohibit this sort of discrimination, although the Governor’s Office has issued an executive order that protects state employees. At least six cities—in addition to New York City—and three counties have anti-discrimination ordinances.

The Document provides definitions of numerous important terms. “Gender” and “sex” are sometimes used interchangeably, but they are not the same. “Gender identity” refers to “one’s internal deeply-held sense of one’s gender,” regardless of one’s assigned sex. A person may identify as male, female, or “non-binary.” A “cisgender” person identifies with the sex assigned to them at birth—i.e. a person deemed “male” at birth who identifies as male. A “transgender” person does not identify with the sex assigned to them at birth. A person’s “gender expression” is how they outwardly present themselves through their name, preferred pronouns (he/him/his, she/her/her), or another set of indicators—clothing, etc.

Employers may not discriminate on the basis of gender identity and expression in numerous aspects of employment. This includes decisions related to hiring and firing, assignment of job duties, benefits, compensation, and other features of employment. The Document identifies other areas in which an employer might violate a worker’s rights under the NYCHRL. One area that has generated much discussion in the media involves preferred names or pronouns. The Commission states that an employer violates the NYCHRL when it intentionally fails to use a person’s preferred name or pronouns. This means that the employee must have given notice that, for example, they prefer the pronouns “she/her/her,” but the employer has instead continued to refer to the employee using male pronouns.

Another section of the Document that has sparked interest involves the NYCHRL’s ban on gender-based “uniforms or grooming standards.” An employer cannot impose different dress or appearance codes if they discriminate by gender, such as a requirement that all male employees wear ties or all female employees wear pantyhose. Federal courts, applying Title VII of the Civil Rights Act, have reached the opposite conclusion, as noted in the Document. See, e.g. Fountain v. Safeway Stores, Inc., 555 F.2d 753 (9th Cir. 1977) (requiring only male employees to wear ties does not violate Title VII); Longo v. Carlisle DeCoppet & Co., 537 F.2d 685 (2d Cir. 1976) (requiring male, but not female, employees to cut their hair short is not unlawful sex discrimination).

Phillips & Associates’ gender discrimination attorneys represent job seekers and current and former employees in the New York City area. We advocate for our clients’ rights in claims for discrimination and other unlawful employment practices under federal, state, and city laws. To schedule a free and confidential consultation with a member of our team, contact us today online or at (212) 248-7431.

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New York City Affordable Housing Worker Alleges Sexual Harassment, Other Unlawful Acts by Construction Company, New York Employment Attorney Blog, December 3, 2015

Former Hospital Employee’s Lawsuit Demonstrates the Short Distance Between Sexual Harassment and Pregnancy Discrimination, New York Employment Attorney Blog, November 24, 2015

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