How New York City’s New Gender Identity Discrimination Guidelines Affect Restrooms in the Workplace

New York City has had a law prohibiting discrimination in employment and other areas based on gender identity and gender expression since 2002. The New York City Human Rights Commission (NYHRC) published new guidelines in December 2015 detailing the extent of these legal protections, which protect transgender people and people who do not conform to a stereotypical gender identity (“non-conforming”) or a binary male/female gender identity (“non-binary”). This has, to put it mildly, generated some dissent. The backlash seems to be focused on a particular location:  restrooms. The NYHRC’s guidelines could affect the status of restrooms in the workplace, but not in the way many or most critics seem to think.The New York City Human Rights Law (NYCHRL) prohibits discrimination in employment based on a wide range of factors, including gender identity and expression. The statute defines “gender” to include an individual’s “gender identity, self-image, appearance, behavior or expression,” regardless of whether any of these are “traditionally associated with the legal sex assigned to that person at birth.” N.Y.C. Admin. Code § 8-102(23). A “transgender” person, generally speaking, is someone whose gender identity does not match the sex assigned to them at birth, and a “cisgender” person is someone whose gender identity is the same as their biological sex.

The new guidelines regarding gender identity and gender expression discrimination list eight areas in which violations may occur. One of these, in the context of employment, consists of refusing or failing to allow employees “to use single-sex facilities, such as bathrooms or locker rooms…consistent with their gender.” Opponents of expanded legal protections for transgender people and other non-conforming or non-binary people frequently mention restrooms as a reason for concern.

The concern expressed over the “bathroom issue,” simply stated, is that laws prohibiting gender identity discrimination will require businesses and schools to allow people to use whichever restroom they want, and this will put people (mostly women and children) at risk of assault by others (mostly men posing as women). The proponents of these concerns rarely present any evidence to support their claims, and a few have even acknowledged that they know of no specific incidents. On the other hand, violence against transgender people, if they are required to use the restroom for their sex assigned at birth, is a very real and well-documented risk.

Employers are required by federal workplace safety regulations, 29 C.F.R. § 1910.141, to have restroom facilities for their employees. The NYCHRC clearly states in the new guidelines that it is not requiring employers to “ make existing bathrooms all-gender or construct additional restrooms.” Employers in New York City may not prohibit an employee from using a particular restroom based on their conformity to sex or gender stereotypes, nor may they require an employee to provide proof of their gender in order to use a particular facility. They must allow people of all genders to use “single-occupancy restrooms,” but they cannot require transgender, non-conforming, or non-binary employees to use those restrooms exclusively. Finally, “concern that a transgender or gender non-conforming person will make others uncomfortable” is not a sufficient reason to deny them the use of a facility.

The gender discrimination attorneys at Phillips & Associates represent job applicants, employees, and former employees in New York City. We fight for our clients’ rights in claims under federal, state, and city employment statutes prohibiting discrimination and other unlawful practices. Contact us online or at (212) 248-7431 today to schedule a free and confidential consultation with a member of our team.

More Blog Posts:

Actors Fight Against Sexual Harassment in New York City Theater, New York Employment Attorney Blog, January 29, 2016

New Guidance from New York City Human Rights Commission on Gender Identity and Expression Discrimination, New York Employment Attorney Blog, January 25, 2016

Protection Against Transgender Discrimination in Employment is Available to Some Employees, but Not All, New York Employment Attorney Blog, October 19, 2011

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