The legal enforcement guidelines below are well worth reading and following in whatever work you do.
Betsy Combier, betsy.combier@gmail.com
Editor, ADVOCATZ.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials
Gender Identity/Gender Expression: Legal Enforcement Guidance
New York
City Commission on Human Rights Legal Enforcement Guidance on Discrimination on
the Basis of Gender Identity or Expression: Local Law No. 3 (2002); N.Y.C.
Admin. Code § 8-102(23)
INDEX
The New
York City Human Rights Law (“NYCHRL”) prohibits discrimination in employment,
public accommodations, and housing. It also prohibits discriminatory harassment
and bias-based profiling by law enforcement. The NYCHRL, pursuant to the 2005
Civil Rights Restoration Act, must be construed “independently from similar or
identical provisions of New York state or federal statutes,” such that
“similarly worded provisions of federal and state civil rights laws [are] a
floor below which the City’s Human Rights law cannot fall, rather than a
ceiling above which the local law cannot rise.” 1
The New
York City Commission on Human Rights (the “Commission”) is the City agency
charged with enforcing the NYCHRL. People interested in vindicating their
rights under the NYCHRL can choose to file a complaint with the Commission’s
Law Enforcement Bureau within one (1) year of the discriminatory act or, in the
case of gender-based harassment, within three (3) years of the discriminatory
act.2 Alternatively, a complaint can be filed in court within three (3)
years of the discriminatory act.
The NYCHRL prohibits discrimination by most employers,3 housing providers,4 and public accommodations5 on the basis of gender. The term gender “shall include 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.”6
This document serves as the Commission’s legal enforcement guidance on the NYCHRL’s protections as they apply to discrimination based on gender, gender identity, and gender expression, which constitute gender discrimination under the NYCHRL. This document is not intended to serve as an exhaustive list of all forms of gender-based discrimination claims under the NYCHRL.
The NYCHRL prohibits discrimination by most employers,3 housing providers,4 and public accommodations5 on the basis of gender. The term gender “shall include 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.”6
This document serves as the Commission’s legal enforcement guidance on the NYCHRL’s protections as they apply to discrimination based on gender, gender identity, and gender expression, which constitute gender discrimination under the NYCHRL. This document is not intended to serve as an exhaustive list of all forms of gender-based discrimination claims under the NYCHRL.
I.
LEGISLATIVE INTENT
In 2002,
the New York City Council passed the Transgender Rights Bill to expand the
scope of the gender-based protections guaranteed under the NYCHRL and to ensure
protection for people whose “gender and self-image do not fully accord with the
legal sex assigned to them at birth.”7 The City’s intent in amending the
law was to make explicit that the law prohibits discrimination against people
based on gender identity.8 The legislative history reflects that people
face frequent and severe discrimination based on gender identity, and
protection from discrimination is “very often a matter of life and death.”9 Recognizing
the profoundly debilitating impact of gender-based discrimination on
transgender, non-binary, and other gender non-conforming people, the amendment
makes clear that “gender-based discrimination—including, but not limited to,
discrimination based on a person’s actual or perceived sex, and discrimination
based on a person’s gender identity, self-image, appearance, behavior, or
expression—constitutes a violation of the City’s Human Rights Law.”10 In
2018, City Council amended the definition of “gender” in the NYCHRL to reflect
a broader and inclusive understanding of gender.11
II.
DEFINITIONS
These
definitions are intended to help people understand the following guidance as
well as their rights and responsibilities under the NYCHRL. In addition to the
terms listed below, there are many other terms related to gender, gender
identity, and gender expression with which a person may identify, including but
not limited to, androgynous, gender diverse, gender expansive, gender fluid,
agender, bigender, genderqueer, pangender, MTF (male to female), and FTM
(female to male). Readers should bear in mind that language evolves, and the
best practice is to refer to people with the term(s) they use to self-identify.
Cisgender. “Cisgender”
is a term used to describe a person whose gender identity conforms with their
sex assigned at birth.
Gender.
"“Gender” includes 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. 12
Gender
Expression. “Gender expression” is the representation of gender as expressed
through one’s name, pronouns, clothing, hairstyle, behavior, voice, or similar
characteristics. Gender expression may or may not conform to gender
stereotypes, norms, and expectations in a given culture or historical period.
Gender expression is not the same as sexual orientation or gender identity.
Terms associated with gender expression include, but are not limited to,
androgynous, butch, female/woman/feminine, femme, gender non-conforming,
male/man/masculine, or non-binary.
Gender
Identity. “Gender identity” is the internal deeply-held sense of one’s gender
which may be the same as or different from one’s sex assigned at birth. A
person’s gender identity may be male, female, neither or both, i.e., non-binary
or genderqueer. Gender identity is not the same as sexual orientation or gender
expression. Terms associated with gender identity include, but are not limited
to, agender, bigender, butch, female/woman/feminine, female to male (FTM),
femme, gender diverse, gender fluid, gender queer, male/man/masculine, male to
female (MTF), man of trans experience, pangender, or woman of trans experience.
Gender
Non-Conforming. “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 or historical period. Terms associated with gender
non-conformity include, but are not limited to, gender expansive, gender
variant, or gender diverse.
Intersex.
“Intersex” is a term used to refer to a person whose sex characteristics
(chromosomes, hormones, gonads, genitalia, etc.) do not conform with a binary
construction of sex as either male or female. This term may not be the same as
a person’s gender identity and is not the same as a person’s sexual
orientation.
Non-binary.
“Non-binary” is a term 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 nor female
Sex. “Sex”
is a combination of chromosomes, hormones, internal and external reproductive
organs, facial hair, vocal pitch, development of breasts, gender identity, and
other characteristics. Gender identity is the primary determinant of a person’s
sex
Transgender.
“Transgender”—sometimes shortened to “trans”—is a term used to describe a
person whose gender identity does not conform with the sex assigned at birth.
III.
VIOLATIONS OF THE NEW YORK CITY HUMAN RIGHTS LAW’S PROHIBITIONS ON GENDER
DISCRIMINATION
Gender
discrimination under the NYCHRL includes discrimination on the basis of gender
identity (including being transgender, non-binary, or gender non-conforming)
and gender expression.13 The definition of gender also encompasses
discrimination against someone for being intersex. Under the NYCHRL, gender
discrimination can be based on one’s perceived or actual gender identity, which
may or may not conform to one’s sex assigned at birth, or based on the ways in
which one expresses gender, such as through appearance or communication style.
Gender discrimination is prohibited in employment, housing, public
accommodations, discriminatory harassment, and bias-based profiling by law
enforcement and exists when a person is treated “less well than others on account
of their gender.”14 For example, firing an employee because they are
transgender, or allowing a non-binary employee to be subjected to a hostile
work environment because of their gender identity constitute discrimination on
the basis of gender.
Harassment
motivated by gender is a form of discrimination. Gender-based harassment can be
a single or isolated incident of disparate treatment or repeated acts or
behavior. Disparate treatment can manifest in harassment when the incident or
behavior creates an environment or reflects or fosters a culture or atmosphere
of sex stereotyping, degradation, humiliation, bias, or objectification. Under
the NYCHRL, gender-based harassment covers a broad range of conduct and occurs
generally when a person is treated less well on account of their gender. While
the severity or pervasiveness of the harassment is relevant to damages, the
existence of differential treatment based on gender is sufficient under the
NYCHRL to constitute a claim of harassment. Gender-based harassment can include
unwanted sexual advances or requests for sexual favors; however, gender-based
harassment does not have to be sexual in nature. For example, refusal to use a
transgender employee’s name, pronouns, or title may constitute unlawful
gender-based harassment. Comments, unwanted touching, gestures, jokes, or
pictures that target a person based on gender constitute gender-based
harassment.
Unlawful
gender-based discrimination is prohibited in the following areas:
Employment:
It is unlawful to refuse to hire, promote, or fire a person because of a person’s actual or perceived gender, including being or being perceived to be transgender, non-binary, or gender non-conforming. It is also unlawful to set different compensation or terms and conditions of employment because of an employee’s gender. Examples of terms and conditions of employment include work assignments, employee benefits, and keeping the workplace free from harassment.
It is unlawful to refuse to hire, promote, or fire a person because of a person’s actual or perceived gender, including being or being perceived to be transgender, non-binary, or gender non-conforming. It is also unlawful to set different compensation or terms and conditions of employment because of an employee’s gender. Examples of terms and conditions of employment include work assignments, employee benefits, and keeping the workplace free from harassment.
Public
Accommodations:
It is unlawful for providers of public accommodations, their employees, or their agents to deny any person, or communicate intent to deny, the services, advantages, facilities or privileges of a public accommodation directly or indirectly because of their actual or perceived gender, including being or being perceived to be transgender, non-binary, or gender non-conforming. Simply put, it is unlawful to deny any person full and equal enjoyment of a public accommodation because of gender.
It is unlawful for providers of public accommodations, their employees, or their agents to deny any person, or communicate intent to deny, the services, advantages, facilities or privileges of a public accommodation directly or indirectly because of their actual or perceived gender, including being or being perceived to be transgender, non-binary, or gender non-conforming. Simply put, it is unlawful to deny any person full and equal enjoyment of a public accommodation because of gender.
Housing:
It is unlawful to refuse to sell, rent, or lease housing to someone because of their actual or perceived gender, including being or being perceived to be transgender, non-binary, or gender non-conforming. It is unlawful to withhold from any person full and equal enjoyment of a housing accommodation because of their gender.
It is unlawful to refuse to sell, rent, or lease housing to someone because of their actual or perceived gender, including being or being perceived to be transgender, non-binary, or gender non-conforming. It is unlawful to withhold from any person full and equal enjoyment of a housing accommodation because of their gender.
The NYCHRL
requires employers and covered entities to use the name, pronouns, and title
(e.g., Ms./Mrs./Mx.)15 with which a person self-identifies, regardless of
the person’s sex assigned at birth, anatomy, gender, medical history,
appearance, or the sex indicated on the person’s identification.
Most people and many transgender people use female or male pronouns and titles. Some transgender, non-binary, and gender non-conforming people use pronouns other than he/him/his or she/her/hers, such as they/them/theirs or ze/hir.16 They/them/theirs can be used to identify or refer to a single person (e.g., “Joan is going to the store, and they want to know when to leave”). Many transgender, non-binary, and gender non-conforming people use a different name than the one they were assigned at birth.
All people, including employees, tenants, customers, and participants in programs, have the right to use and have others use their name and pronouns regardless of whether they have identification in that name or have obtained a court-ordered name change, except in very limited circumstances where certain federal, state, or local laws require otherwise (e.g., for purposes of employment eligibility verification with the federal government). Asking someone in good-faith for their name and gender pronouns is not a violation of the NYCHRL.
Covered entities may avoid violations of the NYCHRL by creating a policy of asking everyone what their gender pronouns are so that no person is singled out for such questions and by updating their systems, intake forms, or other questionaires to allow all people to self-identify their name and gender. Covered entities should not limit the options for identification to male and female only.
Examples of Violations
a. Intentional or repeated refusal to use a person’s name, pronouns, or title. For example, repeatedly calling a transgender woman “him” or “Mr.” after she has made clear that she uses she/her and Ms.
b. Refusal to use a person’s name, pronouns, or title because they do not conform to gender stereotypes. For example, insisting on calling a non-binary person “Mr.” after they have requested to be called “Mx.”
c. Conditioning a person’s use of their name on obtaining a court-ordered name change or providing identification in that name. For example, a covered entity may not refuse to call a transgender man who introduces himself as Manuel by that name because his identification lists his name as Maribel.17
d. Requiring a person to provide information about their medical history or proof of having undergone particular medical procedures in order to use their preferred name, pronouns, or title.
Most people and many transgender people use female or male pronouns and titles. Some transgender, non-binary, and gender non-conforming people use pronouns other than he/him/his or she/her/hers, such as they/them/theirs or ze/hir.16 They/them/theirs can be used to identify or refer to a single person (e.g., “Joan is going to the store, and they want to know when to leave”). Many transgender, non-binary, and gender non-conforming people use a different name than the one they were assigned at birth.
All people, including employees, tenants, customers, and participants in programs, have the right to use and have others use their name and pronouns regardless of whether they have identification in that name or have obtained a court-ordered name change, except in very limited circumstances where certain federal, state, or local laws require otherwise (e.g., for purposes of employment eligibility verification with the federal government). Asking someone in good-faith for their name and gender pronouns is not a violation of the NYCHRL.
Covered entities may avoid violations of the NYCHRL by creating a policy of asking everyone what their gender pronouns are so that no person is singled out for such questions and by updating their systems, intake forms, or other questionaires to allow all people to self-identify their name and gender. Covered entities should not limit the options for identification to male and female only.
Examples of Violations
a. Intentional or repeated refusal to use a person’s name, pronouns, or title. For example, repeatedly calling a transgender woman “him” or “Mr.” after she has made clear that she uses she/her and Ms.
b. Refusal to use a person’s name, pronouns, or title because they do not conform to gender stereotypes. For example, insisting on calling a non-binary person “Mr.” after they have requested to be called “Mx.”
c. Conditioning a person’s use of their name on obtaining a court-ordered name change or providing identification in that name. For example, a covered entity may not refuse to call a transgender man who introduces himself as Manuel by that name because his identification lists his name as Maribel.17
d. Requiring a person to provide information about their medical history or proof of having undergone particular medical procedures in order to use their preferred name, pronouns, or title.
2.
Refusing To Allow People To Utilize Single-Gender Facilities and Programs Most
Closely Aligned with Their Gender
The NYCHRL
requires that people be permitted to use single-gender facilities, such as
restrooms or locker rooms, and to participate in single-gender programs, that
most closely align with their gender, regardless of their gender expression,
sex assigned at birth, anatomy, medical history, or the sex or gender indicated
on their identification. Covered entities that have single-occupancy restrooms
should make clear that they can be used by people of all genders. 18
Some
people, including customers, other program participants, tenants, or employees,
may object to sharing a facility or participating in a program with a
transgender, non-binary, or gender non-conforming person. Such objections are
not a lawful reason to deny access to that transgender, non-binary, or gender
non-conforming person. In those circumstances, a covered entity may offer
alternatives for the individual expressing discomfort, by, for example,
providing a single-occupancy restroom to change in.
Covered
entities may avoid violations of the NYCHRL, by, wherever possible, providing
single-occupancy restrooms and providing private space within multi-user
facilities for anyone who has privacy concerns. Covered entities may
accommodate a person’s request to use a single-occupancy restroom because of
their gender. For example, a person who is non-binary or a person who is in the
process of transitioning may wish to use a single-occupancy restroom. As noted
above, however, it is unlawful to require a person to use a single-occupancy
restroom because they are transgender, non-binary, or gender non-conforming.
Covered entities should create policies to ensure that all people can access
the single-gender facility most closely aligned with their gender and train all
employees, but particularly all managers and employees who have contact with
members of the public, on compliance with the policy, and their obligation
under the NYCHRL to provide non-discriminatory access to single-gender
facilities including for transgender, non-binary, and gender non-conforming
people. Covered entities should post a sign in all single-gender facilities
indicating, “Under New York City Law, all people have the right to use the
single-gender facility most closely aligned with their gender identity or
gender expression.” Covered entities may adopt policies or codes of conduct for
single-gender facilities delineating acceptable behavior for the use of the
facilities that are not themselves discriminatory and do not single out transgender,
non-binary, or gender non-conforming people.
A person’s
assessment of their own safety should be a primary consideration. Covered
entities should offer opportunities for people to come to them if they have
safety concerns and should establish a corresponding safety plan if needed. For
example, if a transgender person requests assignment to a facility
corresponding to their sex assigned at birth instead of corresponding to their
gender identity because of safety concerns, that request should be honored.
Examples
of Violations
a.
Prohibiting a person from using a particular program or facility because they
do not conform to gender stereotypes. For example, a women’s shelter may not
turn away a transgender woman because she looks too masculine. Similarly, a
men’s shelter cannot deny service to a transgender man because he does not look
masculine enough.
b.
Prohibiting a transgender person from using the single-gender program or
facility most closely aligned with their gender identity. For example, a public
university cannot prohibit a transgender man from using the men’s restroom.
c.
Requiring a gender non-conforming person to provide identification or proof of
their gender in order to access the appropriate single-gender program or
facility.
d. Barring
a non-binary student from a single-gender after-school program out of concern
that they will make other students uncomfortable.
e.
Forcing a transgender, non-binary, gender non-conforming, or intersex person to
use a single-occupancy restroom instead of a shared restroom.
3.
Gender Stereotyping
Discrimination
based on a person’s failure to conform to gender stereotypes is a form of
gender discrimination under the NYCHRL. Gender stereotypes are over-simplified
expectations in a given culture or historical period about how people of a
particular gender should be or how they should act. They include expectations
of how a person represents or communicates gender to others, such as behavior,
clothing, hairstyle, activities, voice, mannerisms, or body characteristics.
Gender stereotypes also relate to the roles or behaviors in a society. Covered
entities may not require people to conform to stereotypical norms of
masculinity or femininity. The law also recognizes that unlawful gender
stereotyping often manifests itself as anti-gay epithets or attributing a
particular sexual orientation to people who do not conform to gender
stereotypes.
Covered
entities may avoid violations of the NYCHRL by training all staff on creating
and maintaining an environment free from gender stereotyping.
Examples
of Violations
a. Making unwelcome jokes about a person’s sexuality based on their non-conformity with gender norms.
a. Making unwelcome jokes about a person’s sexuality based on their non-conformity with gender norms.
b.
Overlooking a female employee for a promotion because her behavior does not
conform to the employer’s notion of how a woman should behave at work.
c.
Enforcing a policy in which men may not wear jewelry or make-up at work.
4.
Imposing Different Uniforms or Grooming Standards Based on Gender
Under the
NYCHRL, employers and covered entities may not require dress codes or uniforms,
or apply grooming or appearance standards, that impose different requirements
for people based on gender. The fact that the grooming standard or dress code
differentiates based on gender is sufficient for it to be considered
discriminatory, even if perceived by some as harmless. Holding people to
different grooming or uniform standards based on gender serves no legitimate
non-discriminatory purpose and reinforces a culture of gender stereotypes and
cultural norms based on gender expression and identity. 19
The
variability of expressions associated with gender and gender norms contrast
vastly across culture, age, community, personality, style, and sense of self.
Placing the burden on people to justify their gender identity or expression and
to demonstrate why a particular distinction makes them uncomfortable or does
not conform to their gender expression would serve to reinforce a notion of
gender that the NYCHRL has disavowed. When a person is treated differently
because of their gender and required to conform to a specific standard assigned
to their gender, that is gender discrimination regardless of intent, and is not
permissible under the NYCHRL.
Employers
and covered entities are entitled to enforce a dress code or require specific
grooming or appearance standards; however, it must be done without imposing
restrictions or requirements specific to gender. It will not be a defense that
an employer or covered entity is catering to the preferences of their customers
or clients.
Covered
entities may avoid violations of the NYCHRL by creating gender-neutral dress
codes and grooming standards. For example, a covered entity may require people
to wear their hair pulled back from the face or require that workers must wear
either a pantsuit or a skirt suit. Covered entities may provide different
uniform options that are culturally typically masculine and typically feminine.
For example, an employer that provides uniform shirts may provide a shirt that
is more typical of a woman’s blouse and another that is looser fitting in a
style more typical of a man’s button-down shirt. It would be unlawful, however,
to require an employee to wear one style over another because of gender.
Examples
of Violations
a. Maintaining grooming and appearance standards that apply differently to men or women or which have gender-based distinctions. For example, requiring different uniforms for men and women, or requiring that female bartenders wear makeup.
a. Maintaining grooming and appearance standards that apply differently to men or women or which have gender-based distinctions. For example, requiring different uniforms for men and women, or requiring that female bartenders wear makeup.
b.
Requiring employees of one gender to wear a uniform specific to that gender.
c.
Permitting only women to wear jewelry or requiring only men to have short hair.
By contrast, requiring all servers, to always have long hair tied back in a
ponytail or away from their face is not a violation unless it is applied
unequally based on gender.
d.
Permitting cisgender women but not transgender women who are residents at a
drug treatment facility to wear wigs and high heels.
e.
Requiring all men to wear ties in order to dine at a restaurant.
5.
Providing Employee Benefits that Discriminate Based on Gender
The NYCHRL prohibits covered entities from offering employee benefits that discriminate on the basis of gender. To comply with the law, entities must offer benefits equally to all employees regardless of gender. Employee benefit plans that are covered by, and in compliance with, the Employee Retirement Income Security Act and applicable federal anti-discrimination laws are also in compliance with the NYCHRL. 20
The NYCHRL prohibits covered entities from offering employee benefits that discriminate on the basis of gender. To comply with the law, entities must offer benefits equally to all employees regardless of gender. Employee benefit plans that are covered by, and in compliance with, the Employee Retirement Income Security Act and applicable federal anti-discrimination laws are also in compliance with the NYCHRL. 20
It is
unlawful for an employer to provide health benefit plans that deny or exclude
services on the basis of gender. To be non-discriminatory with respect to
gender, health benefit plans must cover gender-affirming care, also known as
transition-related care or transgender care. An employer that has selected a
non-discriminatory plan will not be liable for the denial of coverage of a
particular medical procedure by an insurance company, even when that denial may
constitute discrimination on the basis of gender. However, if an employer is on
notice that the employer’s selected benefit plan routinely denies
gender-affirming care, then the employer should take action to remedy the
violation.
Gender-affirming
care is medically necessary, effective, and even life-saving for many
transgender, non-binary, and gender non-conforming people. Gender-affirming
care includes a range of treatments, including, for example, hormone
replacement therapy, breast augmentation/reconstruction, mastectomy, facial
feminization, voice training, or surgery. The treatment different people
receive may differ according to their needs and overall health. In addition to
protections under the NYCHRL, federal law requires self-insured plans governed
by the Affordable Care Act to cover medically necessary gender-affirming care
and New York State law requires fully-insured New York plans to do the
same. 21
Covered
entities may avoid violations under the NYCHRL by reviewing their existing
health benefit plans, and if they do not already, provide an option that
includes comprehensive coverage for transgender, non-binary and gender
non-conforming people. Employers should take care to select plans that follow
recognized professional standards or medical care for transgender people, for
example, the standards of care of the World Professional Association for
Transgender Health. Because relatively few health care providers currently
perform certain transition-related or gender-affirming care, employers should
consider selecting plans that do not prohibit, place limits on, or have
significantly higher co-pays or low reimbursements rates for out-of-network
care.
Examples
of Violations
a. Employers offering health benefits to the opposite-sex spouses of employees, but not same-sex spouses.
a. Employers offering health benefits to the opposite-sex spouses of employees, but not same-sex spouses.
b.
Employers offering health benefits that do not cover care when a person’s sex
assigned at birth or gender otherwise recorded in a medical record or insurance
plan is different from the one to which health services are ordinarily or
exclusively available. For example, offering benefits that cover prostate
cancer screening for cisgender men but not for transgender women.
c.
Employers offering health benefits that categorically exclude from coverage, or
limit coverage for, health services related to gender transition, for example
by categorically deeming certain procedures as “cosmetic” without an
individualized assessment of medical necessity.
d.
Employers offering any other employee benefits that discriminate on the basis
of gender. For example, offering a stipend for child care to female but not
male employees.
6.
Considering Gender When Evaluating Requests for Accommodations
The NYCHRL prohibits covered entities from considering gender when evaluating requests for accommodations for disabilities, or other requests for changes to the terms and conditions of one’s employment, participation in a program, or use of a public accommodation, which may include additional medical or personal leave or schedule changes. When a covered entity grants leave or time off of work to employees for medical or health reasons, it shall treat leave requests to address medical or health care needs related to a person’s gender identity in the same manner as requests for all other medical conditions. Covered entities shall provide reasonable accommodations to people undergoing gender transition, including medical leave for medical and counseling appointments, surgery, and recovery from gender-affirming procedures, surgeries, and treatments as they would for any other medical condition.
The NYCHRL prohibits covered entities from considering gender when evaluating requests for accommodations for disabilities, or other requests for changes to the terms and conditions of one’s employment, participation in a program, or use of a public accommodation, which may include additional medical or personal leave or schedule changes. When a covered entity grants leave or time off of work to employees for medical or health reasons, it shall treat leave requests to address medical or health care needs related to a person’s gender identity in the same manner as requests for all other medical conditions. Covered entities shall provide reasonable accommodations to people undergoing gender transition, including medical leave for medical and counseling appointments, surgery, and recovery from gender-affirming procedures, surgeries, and treatments as they would for any other medical condition.
Covered
entities may avoid violations under the NYCHRL by creating internal procedures
to evaluate all requests for accommodations in a fair and non-discriminatory
manner.
Examples
of Violations
a. An employer who has a policy of routinely granting unpaid medical leave upon request to people who have been working for the employer for over a year, who refuses to honor that policy when the request is made by a transgender person.
a. An employer who has a policy of routinely granting unpaid medical leave upon request to people who have been working for the employer for over a year, who refuses to honor that policy when the request is made by a transgender person.
b.
When an employer or covered entity permits a reasonable accommodation for a
cisgender woman seeking reconstructive breast surgery deemed medically
necessary but refuses that same accommodation when requested by a transgender
woman undergoing the same medically necessary surgery.
c.
Requesting medical documentation to verify leave time from transgender
employees or participants, but not cisgender employees or participants.
d.
Determining the retention and accrual of benefits, such as seniority, retirement,
and pension rights, during personal or medical leave periods for employees
based on gender.
7.
Engaging in Discriminatory Harassment
The NYCHRL prohibits discriminatory harassment or violence motivated by a person’s actual or perceived gender, gender identity, or gender expression that attempts to interfere with, or actually interferes with, the free exercise of a legal right. Discriminatory harassment includes violence, the threat of violence, a pattern of threatening verbal harassment, the use of force, intimidation or coercion, defacing or damaging real property, and cyberbullying. For example, a tenant assaulting or threatening to assault a neighbor because of her gender expression, in addition to committing a crime, is also violating the NYCHRL.
The NYCHRL prohibits discriminatory harassment or violence motivated by a person’s actual or perceived gender, gender identity, or gender expression that attempts to interfere with, or actually interferes with, the free exercise of a legal right. Discriminatory harassment includes violence, the threat of violence, a pattern of threatening verbal harassment, the use of force, intimidation or coercion, defacing or damaging real property, and cyberbullying. For example, a tenant assaulting or threatening to assault a neighbor because of her gender expression, in addition to committing a crime, is also violating the NYCHRL.
8.
Engaging in Retaliation
The NYCHRL prohibits retaliation against a person for opposing discrimination or requesting a reasonable accommodation for a disability based on gender. Opposing discrimination includes, but is not limited to, making an internal complaint about discrimination, making an external complaint of discrimination to the Commission or another government agency, or participating in an investigation of discrimination. An action taken against a person that is reasonably likely to deter them from engaging in such activities is considered unlawful retaliation. The action need not rise to the level of a final action or a materially adverse change to the terms and conditions of employment, housing, or participation in a program to be retaliatory under the NYCHRL. When a person opposes what they believe in good faith to be unlawful discrimination, it is unlawful to retaliate against the person even if the conduct they opposed is not ultimately determined to violate the NYCHRL.
The NYCHRL prohibits retaliation against a person for opposing discrimination or requesting a reasonable accommodation for a disability based on gender. Opposing discrimination includes, but is not limited to, making an internal complaint about discrimination, making an external complaint of discrimination to the Commission or another government agency, or participating in an investigation of discrimination. An action taken against a person that is reasonably likely to deter them from engaging in such activities is considered unlawful retaliation. The action need not rise to the level of a final action or a materially adverse change to the terms and conditions of employment, housing, or participation in a program to be retaliatory under the NYCHRL. When a person opposes what they believe in good faith to be unlawful discrimination, it is unlawful to retaliate against the person even if the conduct they opposed is not ultimately determined to violate the NYCHRL.
Covered
entities may avoid violations of the NYCHRL by implementing internal
anti-discrimination policies to educate employees, tenants, and program
participants of their rights and obligations under the NYCHRL with respect to
gender, gender identity, and gender expression and regularly train staff on
these issues. Covered entities should create procedures for employees, tenants,
and program participants to internally report violations of the law without
fear of adverse action and to train those in supervisory capacities on how to
handle those claims when they witness discrimination or instances are reported
to them by subordinates. Covered entities that engage with the public should
implement a policy for interacting with the public in a respectful,
non-discriminatory manner consistent with the NYCHRL, respecting gender
diversity, and ensuring that members of the public do not face discrimination,
including with respect to single-gender programs and facilities.
Examples
of Violations
a. Repeatedly assigning a person to work the least desirable shifts contrary to the normal practice of rotating those shifts equally among staff because the person made an internal complaint of discrimination.
a. Repeatedly assigning a person to work the least desirable shifts contrary to the normal practice of rotating those shifts equally among staff because the person made an internal complaint of discrimination.
b.
Demoting or firing a person because they have filed a complaint with the
Commission or filed their own case in civil court.
c.
Failing to grant accommodations for a person otherwise not required under the
law but that are routinely provided by the employer because the person was
interviewed as a witness in a coworker’s case alleging discrimination.
d.
Refusing to advance a program participant to the next stage of the program
despite their successful completion of the previous stage because the
participant raised concerns about unequal treatment.
IV.
PENALTIES IN ADMINISTRATIVE ACTIONS
The Commission can impose civil penalties up to $125,000 for violations, and up to $250,000 for violations that are the result of willful, wanton, or malicious conduct. The amount of a civil penalty will be guided by the following factors, among others:
• The number of violations;
• The severity of the violation;
• The existence of previous or subsequent violations;
• The willfulness of the violation;
• The employer’s size, considering both the total number of employees and its revenue;
• Any efforts the employer has made to promptly remedy violations; and
• The employer’s actual or constructive knowledge of the NYCHRL.
The Commission can impose civil penalties up to $125,000 for violations, and up to $250,000 for violations that are the result of willful, wanton, or malicious conduct. The amount of a civil penalty will be guided by the following factors, among others:
• The number of violations;
• The severity of the violation;
• The existence of previous or subsequent violations;
• The willfulness of the violation;
• The employer’s size, considering both the total number of employees and its revenue;
• Any efforts the employer has made to promptly remedy violations; and
• The employer’s actual or constructive knowledge of the NYCHRL.
These
penalties are in addition to the other remedies available to people who
successfully resolve or prevail on claims under the NYCHRL, including, but not
limited to, back and front pay, along with other compensatory and punitive
damages. The Commission may consider the lack of an adequate
anti-discrimination policy as a factor in determining liability, assessing
damages, and mandating certain affirmative remedies.
1 Local Law No. 85 (2005); see also N.Y.C. Admin. Code § 8-130(a) (“The provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York state civil and human rights laws, including those laws with provisions worded comparably to provisions of this title, have been so construed.”)
3
The NYCHRL prohibits unlawful discriminatory practices in employment and covers
entities including employers, labor organizations, employment agencies, joint
labor-management committee controlling apprentice training programs, or any
employee or agent thereof. N.Y.C. Admin. Code § 8-107(1). Under the NYCHRL:
“The term ‘employer’ does not include any employer with fewer than four persons
in the employ of such employer,” except claims for gender-based harassment
apply to employers of all sizes. N.Y.C. Admin. Code § 8-102. With regards to
counting employees, “natural persons employed as independent contractors to
carry out work in furtherance of an employer's business enterprise who are not
themselves employers shall be counted as persons in the employ of such
employer.” Id. “The term ‘employment agency’ includes any person undertaking to
procure employees or opportunities to work.” Id. “The term ‘labor organization’
includes any organization that exists and is constituted for the purpose, in
whole or in part, of collective bargaining or of dealing with employers
concerning grievances, terms and conditions of employment, or of other mutual
aid or protection in connection with employment.” Id.
4
The NYCHRL prohibits unlawful discriminatory practices in housing and covers
entities including the “owner, lessor, lessee, sublessee, assignee, or managing
agent of, or other person having the right to sell, rent or lease or approve
the sale, rental or lease of a housing accommodation, constructed or to be
constructed, or an interest therein, or any agent or employee thereof.” N.Y.C.
Admin. Code § 8-107(5)(a). Covered entities also include real estate brokers,
real estate salespersons, or employees or agents thereof. Id. Under the NYCHRL:
“The term ‘housing accommodation’ includes any building, structure or portion
thereof that is used or occupied or is intended, arranged or designed to be
used or occupied, as the home, residence or sleeping place of one or more human
beings. Except as otherwise specifically provided, such term includes a
publicly-assisted housing accommodation.” N.Y.C. Admin. Code § 8-102. However,
the NYCHRL exempts from coverage: “the rental of a housing accommodation, other
than a publicly-assisted housing accommodation, in a building which contains
housing accommodations for not more than two families living independently of
each other, if the owner members or the owner's family reside in one of such
housing accommodations, and if the available housing accommodation has not been
publicly advertised, listed, or otherwise offered to the general public; or (2)
to the rental of a room or rooms in a housing accommodation, other than a
publicly-assisted housing accommodation, if such rental is by the occupant of
the housing accommodation or by the owner of the housing accommodation and the
owner or members of the owner's family reside in such housing accommodation.”
N.Y.C. Admin. Code § 8-107(5)(4).
5
The NYCHRL prohibits unlawful discriminatory practices in public accommodations
and covers entities including “any person who is the owner, franchisor,
franchisee, lessor, lessee, proprietor, manager, superintendent, agent or
employee of any place or provider of public accommodation.” N.Y.C. Admin. Code
§ 8-107(4). Under the NYCHRL: “The term ‘place or provider of public accommodation’
includes providers, whether licensed or unlicensed, of goods, services,
facilities, accommodations, advantages or privileges of any kind, and places,
whether licensed or unlicensed, where goods, services, facilities,
accommodations, advantages or privileges of any kind are extended, offered,
sold, or otherwise made available. Such term does not include any club which
proves that it is in its nature distinctly private … [or] a corporation
incorporated under the benevolent orders law or described in the benevolent
orders law but formed under any other law of this state, or a religious
corporation incorporated under the education law or the religious corporation
law [which] is deemed to be in its nature distinctly private.” Admin. Code §
8-102.
8
Report of the Governmental Affairs Division, Committee on General Welfare,
Intro. No. 24, to amend the administrative code of the city of New York in
relation to gender-based discrimination (April 24, 2002) accessible through
http://legistar.council.nyc.gov/Legislation.aspx.
11
Compare Local Law 38 (2018)(“’gender’ shall include 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”) with Local Law 3 (2002) (“’gender’ shall include actual or perceived
sex and shall also include a person’s gender identity, self-image, appearance,
behavior or expression, whether or not that gender identity, self-image,
appearance, behavior or expression is different from that traditionally
associated with the legal sex assigned to that person at birth”).
14
Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 39 (1st Dep’t 2009).
15 The gender-neutral title Mx. is pronounced “məks” (similar to “mex”) or “mɪks” (similar to “mix”).
15 The gender-neutral title Mx. is pronounced “məks” (similar to “mex”) or “mɪks” (similar to “mix”).
17
Where covered entities regularly request a form of identification from members
of the public for a legitimate business reason, requesting a form of
identification from transgender, non-binary, or gender non-conforming people is
not unlawful. Just as is the case for many cisgender people, many transgender,
non-binary, and gender non-conforming people’ appearances may not appear the
same as what is represented on their photo identification. Covered entities may
use a form of identification to corroborate a person’s identification, but may
not subject a transgender, non-binary, or gender non-conforming person to a
higher level of scrutiny than any other person presenting a form of
identification.
18
N.Y.C. Admin. Code § 28-315.9. A single-occupancy restroom is a room with a
single toilet, walls, a sink, and a door.
19
As stated in N.Y.C. Admin. Code § 8-130(a), protections against gender
discrimination under the NYCHRL are broader than protections against sex
discrimination under federal law. Federal courts have established a higher
threshold to find discrimination with respect to grooming and dress standards:
differing standards based on sex or gender are permitted so long as they do not
impose an undue burden, an evidentiary standard that the plaintiff must prove.
Jespersen v. Harrah’s Operating Co., Inc., 392 F.3d 1076 (9th Cir. 2004) aff’d
on reh’g, 444 F.3d 1104 (9th Cir. 2006) (granting summary judgment for
defendant because plaintiff failed to produce evidence that requiring female
bartenders to wear makeup placed greater burden on women than on men). By
comparison, the NYCHRL must analyze claims “separately and independently from
any federal and state law claims,” 2005 Restoration Act, supra note 1, and is
required to construe the law “broadly in favor of discrimination plaintiffs to
the extent that such a construction is reasonably possible.” Mihalik v. Credit
Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (denying
summary judgment for the defendant because, under the more liberal standard of
NYCHRL, the plaintiff provided sufficient evidence that gender discrimination
may have occurred).
21
Patient Protection & Affordable Care Act, 42 U.S.C. § 18116 (2010); N.Y.
Dep’t. of Fin. Serv., Insurance Circular Letter No. 7 on Health Insurance
Coverage for the Treatment of Gender Dysphoria (Dec. 2014).
22
While it is not the focus of this guidance, transgender people may have
additional rights under § 8-107(15) of the NYCHRL, including the right to
reasonable accommodations. Some transgender, non-binary and gender
non-conforming people have a diagnosis of gender dysphoria, which is a
disability within the meaning of the NYCHRL. As with any disability, covered
entities must make reasonable accommodations for people with gender dysphoria.
