New York City Announces Strong Discrimination Protections for Transgender People

Diana Uhimov, January 7, 2016

On December 19, 2015, the New York City Commission on Human Rights announced that the city’s Human Rights Law would establish among the strongest protections in the country for transgender people.  New York City landlords, employers and businesses will be subject to the new regulations.  Gender identity and expression bias has been illegal in New York City since 2002.  But the announcement provided guidance for the first time on what conduct constitutes discrimination under the city’s Human Rights Law, setting forth penalties of up to $250,000 for the most hostile forms of transgender bias.

New York City is home to more than 25,000 transgender and gender-nonconforming people. Despite the New York City Council passing the Transgender Civil Rights Bill in 2002, protecting trans people from discrimination in areas such as employment, housing and public accommodation, many have reported being subjected to discrimination and harassment. According to a survey by the Commission on Human Rights, three quarters of transgender New Yorkers reported harassment or mistreatment in the workplace, one in five were denied housing, one in six were refused medical care and more than half were verbally harassed in public places like restaurants, buses, airports and government buildings because of their gender identity.  The bold new guidelines aim to remedy this ongoing discrimination to ensure that transgender New Yorkers receive the full protection of the city’s human rights law.

Businesses cannot refuse to allow people to use single-sex facilities—such as bathrooms or locker rooms—consistent with their gender identity, regardless of that person’s sex at birth.  And, intentionally referring to a worker as a “he” when the person prefers “she,” could expose business owners to a discrimination lawsuit. Under the rules, employers are required to use the employee’s chosen name, pronoun and title “regardless of the individual’s sex assigned at birth, anatomy, gender, medical history, appearance, or the sex indicated on the individual’s identification.” If an employer is unsure what someone’s preferred name and pronoun is, it is not a violation of the New York City Human Rights Law (NYCHRL) to ask.

Even though federal courts have upheld dress codes in the work place, the guidance bars gender-specific dress codes as discriminatory. Accordingly, it would be a violation of the NYCHRL for employers to require, e.g., men to wear ties or women to wear skirts. The guidance further prohibits employers from refusing to hire, promote, or terminate an individual because of a person’s actual or perceived gender, including actual or perceived status as a transgender person. Under the guidance, it is also illegal to set different terms and conditions of employment, such as work assignments, because of an employee’s gender. In addition, employers must provide health benefits for gender transition care and reasonable accommodations to transitioning people such as medical appointments or recovery time.

Violators of the new law can face civil penalties of up to $125,000, but violations of the NYCHRL “that are the result of willful, wanton, or malicious conduct” can be fined up to $250,000. And there is no limit to the amount of compensatory damages the human rights commission may award to a victim of discrimination. It is recommended that employers review their policies to ensure that they are gender neutral. These rules should be followed in all aspects of employment including hiring, firing, and conduct at the work place.