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NYC Gender Discrmination Guidance

On December 21, 2015, the New York City Commission on Human Rights (the “Commission”) issued guidance on the anti-discrimination provisions of the New York City Human Rights Law (“NYCHRL”) that are already in effect in New York City, specifically the laws prohibiting discrimination based on gender identity and gender expression (the “Guidance”), which cover employers with four (4) or more employees. The Guidance is an extremely broad approach to transgender protection in the workplace, in housing, and public accommodations. However, in our view, the Guidance fails to recognize the practical realities facing businesses, particularly hospitality businesses. We will first summarize the Guidance and then address some of our concerns. The Guidance prohibits:

  • Refusing to Use an Individual’s Preferred Name, Pronoun or Title: It is unlawful for covered entities to prohibit an individual from using a preferred name, pronoun or title or to refuse to acknowledge the same, regardless if such preferred name, pronoun, or title conforms to general notions of that individual’s gender. The Guidance points out that some transgender and gender non-conforming individuals prefer pronouns such as they/them/their or ze/hir, which are popular gender-free pronouns. Employers are required to adhere to an individual’s preference and the Guidance clarifies that asking an employee their preferred pronoun or name is not a violation of the NYCHRL.
  • Refusing to Allow Individuals To Utilize Single-Sex Facilities and Programs Consistent with Their Preferred Gender: The NYCHRL requires that individuals be permitted to use single-sex facilities, including bathrooms and locker rooms, and participate in single-sex programs consistent with their preferred gender, regardless of their sex assigned at birth. Objections by others are not a lawful reason to deny an individual access to such facilities or programs. For example, it is unlawful to deny a transgender woman the use of a women’s bathroom. It is also unlawful to require an individual to show proof of gender in order to utilize a facility or participate in a program.
  • Sex Stereotyping: Sex stereotyping is broadly construed and includes, for example, using anti-gay epithets, overlooking a female for promotion because she does not conform to the employer’s notion of how a female should behave at work, and enforcing a policy prohibiting men from wearing make-up or jewelry at work.
  • Imposing Different Uniforms or Grooming Standards Based on Sex or Gender: The Guidance bans an employer from imposing on employees any uniform or grooming standards that are gender specific, regardless if the same are perceived as innocuous. For example, employers cannot require women to wear a skirt suit and men to wear a traditional suit. Employers are permitted to impose such uniform standards, but they cannot require an employee to wear one over the other. This strays drastically from current state and federal law, which permits the requirement of grooming standards and uniforms that are gender specific so long as the requirement does not impose an undue burden on the employee.
  • Providing Employee Benefits that Discriminate Based on Gender: Employers are prohibited from providing health benefits that are discriminatory based on gender. Health benefits are, therefore, required to cover transgender care, including hormone replacement therapy, voice training, and surgery. Offering health benefits to opposite-sex spouses of employees, and not same-sex spouses, is violative of the law, as is offering a child care stipend to female, but not male, employees.
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