New York Expands Sex, Gender Identity Discrimination Protections
Author: Marta Moakley, XpertHR Legal Editor
October 23, 2015
Governor Andrew M. Cuomo has signed a number of bills that expand current protections regarding employment discrimination and pay equity and has issued regulations addressing gender identity discrimination protections. The bills were part of the expansive Women's Equality Act, although not all pieces of legislation as originally proposed were signed into law. In a press release, the Governor's Office stated that the regulations mark the "first time that any Governor has issued statewide regulations to prohibit harassment and discrimination on the basis of gender identity, transgender status or gender dysphoria."
The Women's Equality Act touches on a number of existing employment laws, including equal pay, discrimination and harassment protections. The new laws will take effect on January 19, 2016.
Pay equity. A new law prohibits an employer from disciplining or terminating an employee based on his or her discussion of current wages or salaries. In addition, an employer found to have willfully violated the law may be subject to an increased amount of damages (i.e., treble damages).
Sexual harassment. A new law expands current sexual harassment protections to include all employers. The current definition of employer under state antidiscrimination law covers only those employers with four or more employees. Under the new law, this will continue to be the case but for sex discrimination cases alleging sexual harassment, which do not need to reach the four-employee threshold for applicability.
Discrimination protections. Successful claimants in sex discrimination cases may now recover attorney fees, making it less costly for an employee to bring this type of claim in New York courts. In addition, unlawful employment discrimination will be expanded to cover familial status. Covered employers include employers, employment agencies, licensing agencies or labor organizations. Finally, a new law will require employers to perform a reasonable accommodation analysis for pregnant employees.
Other protections. In addition, employers may find of interest two other laws that do not directly affect employment. First, a new law creates a pilot program to allow domestic violence victims to file electronically for orders of protection, instead of having to appear in person in order to seek protection. Second, existing human trafficking criminal laws have been strengthened.
Governor Cuomo's proposed regulations affirm that transgender individuals are protected through the New York State Human Rights Law (NYSHRL). The regulations cover all private and public employers. Although existing statewide protections cover public employers, and other employers may have been covered through certain municipal ordinances, the statewide regulations aim to protect those transgender individuals in private employment and/or those who reside in municipalities with no additional gender identity protections.
The regulations define discrimination based on sex under the NYSHRL to cover discrimination based on gender identity and transgender status. In addition, the regulations define discrimination based on gender dysphoria (i.e., the medical condition of having a gender different than that assigned at birth) as disability discrimination.