April 04, 2016
Federal, state and local government agencies have expressed increased sensitivity to and awareness of transgender and gender nonconforming individuals and their legal rights in the workplace. The Equal Employment Opportunity Commission (“EEOC”) now considers discrimination against transgender and gender nonconforming individuals to be sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). See U.S. Eq. Empl. Opp. Comm’n, What You Should Know About EEOC and the Enforcement Protections for LGBT Workers, http://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm (last visited Mar. 28, 2016). Administrative agencies in both New York State and New York City similarly have taken regulatory action in the past several months to address discrimination against transgender and gender nonconforming individuals.
The New York State Division of Human Rights promulgated regulations, effective as of January 2016, stating that discrimination against transgender and gender nonconforming individuals falls within the New York State Human Rights Law’s (“NYSHRL”) prohibitions on sex discrimination. See 9 N.Y.C.R.R. § 466.13. Additionally, employers who may have believed they were complying with the New York City Human Rights Law’s (“NYCHRL”) prohibition on discrimination against transgender or gender nonconforming individuals may need to reassess their policies in light of the New York City Human Rights Commission’s (“Commission”) enforcement guidance on such discrimination published in December of last year. In its guidance the Commission clarified what constitutes discrimination on the basis of gender identity and expression under the NYCHRL, which extends beyond traditional notions of discrimination, harassment, and retaliation to include instructions for employers on the use of pronouns and names to call their employees, how to structure dress codes, and what employers should consider in requests for accommodation. See New York City Commission on Human Rights Legal Enforcement Guidance on Discrimination on the Basis of Gender Identity or Expression: Local Law No. 3 (2015), available at http://www.nyc.gov/html/cchr/html/law/gender-identity-legalguidance.shtml (“Enforcement Guidance”).
In this article, we describe the current state of federal, New York State and New York City law on discrimination against transgender and gender nonconforming individuals. We also suggest several ways that employers with operations in New York City might want to amend their policies and practices to comply with the requirements of New York City regulations.
Title VII went into effect in 1964, long before widespread public awareness of gender nonconformity and transgender individuals. Courts and agencies are now grappling with how discrimination against such individuals falls into the scheme of Title VII. Some courts have taken the view that transgender status is a type of sex stereotyping and Title VII thus protects transgender individuals. See, e.g., Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004). Others maintain that although sex stereotyping constitutes sex discrimination under Title VII, discrimination on the basis of transgender status does not. See, e.g., Ulane v. E. Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984); Sweet v. Mulberry Lutheran Home, No. IP02-0320-C-H/K, 2003 WL 21525058, at *1 (S.D. Ind. June 17, 2003).
The Supreme Court has not yet ruled on whether discrimination against transgender and gender nonconforming individuals constitutes sex discrimination under Title VII, but the EEOC issued an agency decision explicitly stating that discriminating on the basis of transgender status constitutes discrimination “because of sex” under Title VII. See Macy v. Holder, EEOC Appeal No. 0120120821, 2012 WL 1435995, at *1 (Apr. 20, 2012). Since then, the EEOC has issued a number of other decisions supporting an expansive definition of “sex” under Title VII. See Lusardi v. Dep't of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015) (holding that restricting a transgender woman’s access to a common restroom constituted discrimination under Title VII), Jameson v. U.S. Postal Service, EEOC Appeal No. 0120130992, 2013 WL 2368729 (May 21, 2013) (holding that intentionally using an incorrect name or gender pronoun may constitute sex-based discrimination or harassment), Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120133123, 2014 WL 1653484 (Apr. 16, 2014) (holding that an employer’s failure to amend its records to reflect changes in gender identity can constitute a valid discrimination claim).
Last month, the EEOC initiated two lawsuits explicitly alleging discrimination based on sexual orientation. See EEOC v. Pallet Companies, No. 1:16-cv-00595-DRB (D. Md. 2016), EEOC v. Scott Medical Health Center, P.C., No. 2:16-cv-00225-CB (W.D. Pa. 2016). The recent lawsuits may portend a more expansive stance on enforcement of Title VII to address discrimination against transgender and gender nonconforming individuals.
New York State Law
The NYSHRL prohibits discrimination on the basis of sex. See N.Y. Exec. Law §290, et seq. The New York State Division of Human Rights, through recently enacted regulations, interprets the NYSHRL to prohibit discrimination on the basis of gender identity and transgender status. See 9 N.Y.C.R.R. § 466.13(c). Similarly, the regulations state that harassment based on gender identity or transgender status is sexual harassment under the NYSHRL. See 9 N.Y.C.R.R. § 466.13(c)(3). The regulations also amend the definition of “disability” under the NYSHRL to include gender dysphoria, a psychological condition characterized by distress because an individual’s gender at birth is contrary to the one with which they identify. See 9 N.Y.C.R.R. § 466.13(d), Amer. Psychol. Ass’n, Diagnostic and Statistical Manual Fifth Edition (DSM-5) (2013). Under the new regulations, an employer may not deny a reasonable accommodation to an employee with gender dysphoria. 9 N.Y.C.R.R. § 466.13(d)(4). Likewise, harassment on the basis of gender dysphoria constitutes harassment on the basis of disability. 9 N.Y.C.R.R. § 466.13(d)(5).
New York City Law
The Transgender Rights Act, enacted in 2002, amended the NYCHRL to prohibit discrimination on the basis of gender identity, gender expression, and transgender status. See N.Y.C. Local Law No. 3 (2002). In 2015, the Commission provided guidance regarding this Act in which it describes eight types of conduct that it deems to constitute violations of the NYCHRL. See generally, Enforcement Guidance. The guidance allows the Commission to impose fines of up to $125,000 per violation, or $250,000 when the conduct is “willful, wanton, or malicious.” Enforcement Guidance at 10. The potential to incur fines and face litigation makes the guidance particularly significant for smaller employers, who may be subject to the NYCHRL even though they may not be subject to federal and state anti-discrimination laws.
In addition to interpreting the NYCHRL, the guidance defines terms related to sex and gender. For example, the guidance defines “gender non-conforming” as “an adjective sometimes used to describe someone whose gender expression differs from traditional gender-based stereotypes.” Enforcement Guidance at 6. The guidance uses the word “transgender” to “describe someone whose gender identity or expression is not typically associated with the sex assigned at birth,” and specifies that “transgender” can identify people “with a broad range of identity and expression,” including those, for example, who identify as androgynous or gender queer. Id. The guidance also clarifies that the terms “transgender” and “gender nonconforming” represent distinct concepts, and the categories can be separate or overlapping. Id.
According to the guidance, the NYCHRL requires that employers refer to individuals by their preferred name and pronoun, regardless of appearance, medical history, or the name on the individual’s identification card. See Enforcement Guidance at 4. The Commission describes an example violation as the “intentional or repeated refusal” to use an individual’s name or pronoun. Id. Plaintiffs may argue that the word “or” may imply that unintentional but repeated use of the wrong name or pronoun is actionable, but the language does not mean that all unintentional use of the incorrect name or pronoun violates the NYCHRL, and the rule has not yet been tested in agencies or the courts. Nevertheless, employers should consider steps, such as diversity training, to minimize the risk of intentional and unintentional misuse of names and pronouns.
The guidance also states that an employer may neither prohibit an individual from using the same-sex restroom of the individual’s choice, nor may the employer require that a transgender individual use a single-occupancy restroom instead of the same-sex multi-occupancy restrooms available to other employees. Id. at 5.
The guidance explicitly includes sex stereotyping as a violation, and provides as examples of violations both anti-gay epithets and the attribution of a sexual orientation to someone because of their appearance or gender identity. Id. at 6. Therefore, calling a transgender woman “gay” because of her transition would violate the NYCHRL. Similarly, policies governing uniforms and grooming standards, which may include dress codes, must be gender neutral. Id. Uniforms may be binary, meaning an employer can offer uniform options traditionally associated with “males” or “females,” but an employer may not require an employee to wear one type of uniform over another. Id. at 7.
An employer in New York City may not consider gender in evaluating requests for reasonable accommodations, which an employee may request based on disability. Id. at 9. The guidance explicitly mentions that employers should provide reasonable accommodation for individuals undergoing gender transition, including time off for counseling and medical appointments as well as gender affirming surgery. Id.
Employers may not need to focus upon or make changes based on some the information the Commission includes in its guidance because many New York City employers are likely already compliant with the law on those issues. Although the guidance requires that employee benefit plans do not discriminate on the basis of gender, it also explicitly states that employers who comply with the Employee Retirement Investment Security Act (“ERISA”) also comply with the NYCHRL. Id. at 8. This statement appears to be an acknowledgement that employers may argue that because ERISA is a federal statute, it preempts the NYCHRL insofar as it mandates an employer to modify an employee benefit plan. See Shaw v. Delta Airlines, Inc., 463 U.S. 85 (1983).
The guidance concludes with a reiteration of the prohibition on discriminatory harassment and retaliation, which are familiar to employers complying with the NYCHRL with respect to other protected categories. Enforcement Guidance at 9-10.
Employers with operations in New York City should review their policies and consider revising them to address the Commission’s guidance as follows:
- During diversity training or training on discrimination and harassment, teach employees what constitutes discrimination against a transgender individual and how to interact with transgender individuals in the workplace.
- Inform employees that they must respect and use an employee’s choice of name and gender pronoun, and that they may not request identification to confirm that employee’s preference.
- Review and update dress codes. Make dress codes gender neutral. For example, a dress code may state that “business casual” can include a sport coat and dress pants, or a modest dress, but the dress code should not state that only men may wear a sport coat with pants or vice versa.
- Revise anti-discrimination policies to state specifically that discrimination against transgender and gender nonconforming individuals is prohibited.
- Ensure that the individuals evaluating disability accommodation requests understand that both New York State and New York City law require accommodations to individuals with gender dysphoria and those undergoing gender transitions.
- Include a space, rather than a check box, to indicate preferred gender pronoun and gender identity on employment applications and other company documents. A blank space, rather than a binary selection, allows the individuals who prefer to be known, for example, as “ze” rather than “he” or “she,” to state that preference.
 Along the same lines, in March 2016, New York City Mayor DeBlasio signed an executive order requiring city agencies to provide restroom access consistent with an individual’s gender identity. See N.Y.C. Exec. Order No. 16 (2016).
Reprinted with permission from the April 4, 2016 edition of the New York Law Journal © 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.