Discrimination based on sexual orientation, gender identity and transgender status is prohibited by both New York City and New York State statutory law. However, under federal law, the protection of transgender rights is more complicated. Some federal appellate courts have held that transgender discrimination falls under the umbrella of “sex discrimination,” which federal law prohibits. Other federal appellate courts disagree. This conflict is awaiting a decision by the U.S. Supreme Court. In the meantime, employees in New York have several options available to them for protecting their rights at the state level and employers should carefully and seriously handle complaints of discrimination to avoid subjecting themselves to liability.
NEW YORK CITY
The New York City Human Rights Law (NYCHRL) prohibits employment discrimination on the basis of gender, which encompasses “actual or perceived sex, gender identity, and gender expression including a person’s actual perceived gender-related self-image, appearance, behavior, expression, or other gender-related characteristic, regardless of the sex assigned that person at birth.” NYCHRL’s prohibition on gender discrimination applies to all employers, regardless of how many employees they have.
Discrimination on the basis of transgender status can occur throughout the employment relationship, including:
- Refusing to hire an applicant
- Refusing to promote an otherwise-qualifying employee
- Firing an employee, especially after they report discrimination or harassment
- Providing unequal employment terms, assignments, or workplace benefits to an employee
- Refusing to provide access to facilities consistent with a person’s self-identified gender
- Refusing to use an employee’s requested name or pronouns
- Imposing grooming standards on the basis of gender stereotypes
NEW YORK STATE
The New York State Human Rights Law (NYSHRL) also prohibits discrimination against transgender and gender-nonconforming people. In 2019, the state legislature amended NYSHRL by passing the Gender Expression Non-Discrimination Act (GENDA). GENDA explicitly included “gender identity or expression” as a protected class in employment, among other categories. Like NYCHRL, NYSHRL prohibits discrimination by employers with any number of employees.
State law protects employees from the same types of discrimination as NYCHRL.
FEDERAL LAW
Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of classes including race, religion, and sex, but it does not expressly identify sexual orientation, gender identity or transgender status as protected classes. However, federal agencies and some federal appellate courts, sometimes referred to as the “Circuit Courts,” have interpreted Title VII to apply to sexual orientation and gender identity.
The Equal Employment Opportunity Commission (EEOC) and the Second and Seventh Circuit Courts have ruled that Title VII’s prohibition of “sex discrimination” also prohibits discrimination on the basis of sexual orientation. Notably, the Second Circuit is the appellate court for all appeals originating from the federal courts located in New York, Connecticut and Vermont.
The Sixth Circuit has ruled transgender status is a protected class under Title VII. The Eleventh Circuit, however, has taken a contrary position. Currently, the Sixth Circuit and Second Circuit rulings on this issue are being reviewed by the U.S. Supreme Court. A decision is expected before November 2020.
Title VII applies to all employers with more than 15 employees.
HOW TO ADDRESS WORKPLACE DISCRIMINATION
Employees in New York City who experience discrimination have options to enforce their rights. Employees can file a complaint with the City Human Rights Commission’s Law Enforcement Bureau, within one year of the last alleged act of discrimination. These complaints can result in a variety of outcomes, including: mediation between the employer and employee; cease and desist orders against the employer; employee reinstatement; payment of lost wages or emotional distress damages; and civil penalties against the employer. Alternatively, employees can bring a lawsuit in the New York state courts within three years from the last act of discrimination.
Under NYSHRL, employees can file a discrimination complaint against an employer with the New York Division of Human Rights (DHR) within one year of the last alleged act of discrimination. After DHR reviews the complaint, it may be taken up by an administrative law judge for a final order. Employees can appeal these orders to state court, if necessary. DHR complaints can result in similar penalties to that ordered by the City Human Rights Commission’s Law Enforcement Bureau: orders to halt the discriminatory behavior; employee reinstatement; or payment of lost wages or other harms suffered as a result of the behavior. As under NYCHRL, an employee can alternatively bring a lawsuit in the New York state courts, as long as the suit is brought within three years of the last act of discrimination.
Under federal law, claims can be filed with the EEOC within 180 days of the discriminatory act. Employees must file a claim with the EEOC and obtain a “Notice of Right to Sue” or they cannot sue in federal court. Thereafter, a litigant can bring an action in federal or state court within 90 days of the date the notice was received.
HANDLING WORKPLACE DISCRIMINATION AND MINIMIZING RISK
Applicants or employees who believe they have experienced discrimination should document their claim in detail: keep careful records of the conduct in question, the date it occurred, and the names of individuals involved. When possible, employees should also lodge a complaint with their employers, document the employer’s response to any complaint, and document in particular any employer action which could be retaliatory. In the event that an employee feels like they need to bring a complaint against their employer, they should consult legal counsel to determine the best course of resolving the situation.
Employers can minimize potential discrimination and protect themselves from liability by instituting written workplace anti-discrimination policies and employee training. Employers should maintain a robust written complaint procedure to address any claims of discrimination and treat all complaints with care. In the event of a complaint, employers should similarly prepare detailed documentation of the allegations and any action taken by the employer and consult legal counsel to understand how to best handle the subsequent investigation.
