CLIENT UPDATE

Putney, Twombly, Hall & Hirson LLP
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January 5, 2016

NYC New Enforcement Guidance for the Legal Protection of Transgender New Yorkers

On December 21, 2015, the New York City Commission on Human Rights (the “Commission”) released new enforcement guidance (“Guidance) under the New York City Human Rights Law (“NYCHRL”) for the legal protection of transgender and gender-nonconforming New Yorkers.

Under the Guidance, several practices on employee dress codes, health benefits, communication, and bathrooms were newly specified as discriminatory.  The Guidance applies to most private employers, businesses and landlords in New York City.

Dress Code and Grooming

The Guidance provides that “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 individuals based on sex or gender.”  Although employee dress codes are not required to have unisex outfits, they cannot include gender driven requirements, such as requiring dresses and makeup for women or not allowing men to have long hair.  Furthermore, requiring men to wear ties or women to wear skirts is now considered discriminatory.

Health Care

With respect to health care, “to comply with the law, entities must offer benefits equally to all employees regardless of gender.”  According to the Guidance, if an employer offers health insurance, the health plans must include coverage for transition related care or gender-affirming care.  For medical leave, employers are required to “treat leave requests to address medical or health care needs related to an individual’s gender identity in the same manner as requests for all other medical conditions.”

Communication and Self Identification

According to the Guidance, it is discriminatory for employers or co-workers to fail to use an individual’s preferred name, pronoun or title “regardless of the individual’s sex assigned at birth, anatomy, gender, medical history, appearance, or the sex indicated on the individual’s identification.”  For example, if an employee prefers to be called “Christina” instead of his legal name “Christopher,” or if an employee prefers to be referred to as “she” rather than “he,” employers and co-workers must abide by these preferences.  If an employer is unsure as to what someone’s preferred pronoun is, it is within an employer’s right to ask.

Restrooms

Employers cannot deny transgender and gender-nonconforming individuals access to restrooms or locker rooms where the individual’s preferredgender identity resides, regardless of that person’s gender at birth.  Further, transgender employees cannot be forced to use a single occupancy restroom.

Take Away for Employers

Under the NYCHRL, individuals can file a complaint with the Commission’s Law Enforcement Bureau within one year of the discriminatory act or file a complaint in New York Supreme Court within three years of the discriminatory act.  In addition to damages available to an aggrieved plaintiff, a violation could result in fines of up to $250,000.

Steps employers should consider taking to help ensure compliance with the Guidance include:

  1. 1. Reviewing dress code and grooming policies and practices to ensure compliance with the Guidance.
  2. 2. Ensuring that the company health insurance policies are consistent with the requirements set forth in the Guidance.
  3. 3. Making sure that co-workers are aware to be mindful and respectful to an individual’s preferences for how he/she wants to be addressed in the workplace.
  4. 4. Making certain that there is no barring of individuals from restrooms or locker rooms based on transgender or non-conforming status.

In addition to the broad protections afforded transgender employees under the NYCHRL, we remind employers that New York State recently expanded its anti-discrimination rules to protect transgender residents.  (Our Client Alert regarding the extension of the State Human Rights Law to transgender individuals is available at http://www.putneylaw.com/cu_102615.html).

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If you have any questions regarding the New York City Human Rights Law, the Guidance or compliance with the protections of transgendered or gender non-conforming individuals, please do not hesitate to contact us.