Discrimination on the Basis of Gender, Gender Identity or Transgender Status Handbook Statement: New York City, New York
Author: Amy E. Mendenhall, Marissa L. Dragoo, Corinn Jackson, and Judith A. Paulson, Littler
When to Include
New York employers that have four or more employees and that have employees working in New York City should consider including this statement in their handbook to educate employees, including supervisors, about prohibitions under the New York City Human Rights Law (NYCHRL) against discrimination on the basis of gender identity and the practical, workplace-related implications of that law.
The NYCHRL's discrimination protections apply to employers employing four or more individuals at any time during the previous 12 months. However, in an action for unlawful discriminatory practice based on a claim of gender-based harassment, the term "employer" also includes any employer, even those with fewer than four persons in their employ.
When determining the number of employees, employers should count freelancers, paid and unpaid interns, employed family members and independent contractors who carry out work in furtherance of the employer's business enterprise and are not themselves employers.
Although the law does not specifically require that employers include a policy in their handbook, the New York Commission on Human Rights has stated in enforcement guidance that it will consider the lack of an adequate antidiscrimination policy as a factor in determining liability, assessing damages and mandating certain affirmative remedies. The existence of a written policy and regular training of employees may assist employers in avoiding violations of the New York City Human Rights Law.
Customizable Handbook Statement
Discrimination on the Basis of Gender, Gender Identity or Transgender Status
The Company prohibits discrimination against and/or harassment of applicants, employees, and interns on the basis of their actual or perceived gender or actual or perceived status as an individual who is transgender, gender non-conforming or intersex. For purposes of this policy, gender includes gender identity, self-image, appearance, behavior or expression. Harassment includes, but is not limited to, violence, threats of violence and similar conduct.
The Company evaluates all requests for reasonable accommodations, including requests for medical leaves or schedule changes, changes to the terms and conditions of employment, program participation or use of a public accommodation in a non-discriminatory manner. This includes, but is not limited to, treating leave requests for medical or health care needs related to an individual's gender identity in the same manner as requests related to other medical conditions.
Employees who engage with the public as part of their job duties are required to do so in a respectful, non-discriminatory manner by respecting gender diversity and ensuring that members of the public are not subject to discrimination (including discrimination with respect to single-gender programs and facilities).
Preferred Names, Titles and Pronouns
The Company allows employees to self-identify their names and genders and will use an individual's preferred name, gendered title (e.g., Mr./Ms.) and pronoun (e.g., he/him/his; she/her/hers; they/them/theirs; or ze/hir). Requests to be addressed by a certain name and/or pronoun do not require supporting documentation.
If an employee is unsure what name, title or pronoun another individual prefers, that employee can ask the person how the person would like to be addressed.
Facilities Designated as Single-Gender
All employees have the right to use single-gender facilities, such as restrooms, consistent with their gender. To the extent possible, the Company will provide single-occupancy restrooms and/or private space within multi-user facilities for individuals with privacy concerns, but will not require use of a single-occupancy bathroom because an individual is transgender or gender non-conforming.
The Company's dress code and grooming standards are gender neutral, meaning they do not differentiate or impose restrictions or requirements based on gender or sex.
Reporting and Anti-Retaliation
Employees with questions or concerns regarding their safety, gender discrimination and/or a request for a reasonable accommodation, or who feel they have been subjected to discrimination or improperly denied an accommodation, should contact their Human Resources representative [or insert name/contact details for appropriate company representative or department]. The Company prohibits and does not tolerate retaliation against employees who report issues or concerns of gender discrimination pursuant to this policy in good faith.
Guidance for Employers
- Gender discrimination under the New York City Human Rights Law (NYCHRL) includes discrimination on the basis of one's actual or perceived gender identity, gender expression, and transgender status. The definition of gender also encompasses discrimination against someone for being intersex.
- The New York City Commission on Human Rights (NYCCHR), which enforces the NYCHRL, has adopted rules and issued Gender Identity/Gender Expression: Legal Enforcement Guidance, which describes in detail the Commission's take on employers' obligations under the law. The rules and Guidance provide several definitions, including the following:
- Gender identity is one's internal deeply-held sense of one's gender, which may be the same or different from one's sex assigned at birth. One's gender identity may be male, female, neither or both, e.g., non-binary. Terms associated with gender identity include, but are not limited to, agender, bigender, female/woman/womxn/feminine, female to male (FTM), gender diverse, gender fluid, gender queer, male/man/masculine, male to female (MTF), man of trans experience, pangender, or woman of trans experience.
- Gender expression is the representation of gender as expressed through, for example, one's name, choice of pronouns, clothing, haircut, behavior, voice or body characteristics. Gender expression might not be distinctively male or female and might not conform to traditional gender-based stereotypes assigned to specific gender identities in a given cultural or historical period. Terms associated with gender expression include, but are not limited to, androgynous, butch, female/woman/feminine, femme, gender non-conforming, male/man/masculine, or non-binary.
- Intersex is a term used to refer to a person whose hormones, reproductive or sexual anatomy and/or chromosomal pattern does not conform with a binary construction of sex that is either male or female.
- Transgender is an adjective used to describe someone whose gender identity or expression is not typically associated with the sex assigned at birth. It can be used to describe people with a broad range of identity or expression. Someone who identifies their gender as androgynous, gender queer, non-binary, gender non-conforming, male to female (MTF) or female to male (FTM) may also consider themselves to be transgender.
- Cisgender is a term used to describe a person whose gender identity confirms with their sex assigned at birth.
- Non-binary is a term used to describe a person whose gender identity is not exclusively male or female. For example, some people have a gender identity that blends elements of being a man or a woman or a gender identity that is neither male nor female.
- Sex is a combination of several characteristics, including but not limited to, chromosomes, hormones, internal and external reproductive organs, facial hair, vocal pitch, development of breasts and gender identity.
- The NYCHRL itself defines gender expansively to include gender identity and expression. The law also defines sexual orientation broadly to include an individual's actual or perceived romantic, physical or sexual attraction to other persons (or lack thereof), including heterosexuality, homosexuality, bisexuality, asexuality and pan sexuality.
- According to the rules and Guidance, compliance with the NYCHRL requires that employers use an individual's preferred name, pronoun and title, regardless of the individual's assigned sex at birth, anatomy, gender, medical history, appearance, or the sex indicated on the individual's identification. Employees have the right to use their preferred name regardless of whether they have identification in that name or have obtained a court-ordered name change. There is an exception for those circumstances where a federal, state or local law requires otherwise, such as for the purpose of employment eligibility verification with the federal government.
- It is not a violation of the NYCHRL to ask an individual about their preference for pronoun or name.
- In its Guidance, the Commission recommends adopting a policy of asking all employees about their gender pronoun preference so that no individual is singled out for that question. The agency also recommends modifying systems to allow all individuals to self-identify their names and genders, with options that are not limited to male and female.
- Covered entities must allow individuals to use single-gender facilities, such as bathrooms or locker rooms, and participate in single-gender programs consistent with their gender, regardless of their sex assigned at birth, appearance, anatomy, etc. For example, it is unlawful to prohibit a transgender woman from using the women's bathroom or to require that a transgender or gender non-conforming individual provide proof of their gender in order to access the appropriate single-gender program or facility. Employer and/or customer preference is not a permissible reason to deny access to a single-gender facility.
- The Commission indicates in its Guidance that covered entities should post a sign on all single-gender facilities that states "Under New York City Law, all individuals have the right to use the single-gender facility consistent with their gender identity or expression."
- The Commission advises that entities with single-occupancy restrooms should make clear that they can be used by individuals of any gender. New York City's plumbing code also specifies that a single-occupant toilet room (i.e., one with no more than one water closet and no more than one urinal) must be made available for use by individuals of any sex. The plumbing code does not require any physical alteration of the single-occupant bathroom, except for the posting and maintenance of appropriate signage.
- It is also unlawful to require an individual to use a single-occupancy restroom or other facility. However, employers can accommodate requests to use single-occupancy restrooms and can provide single-occupancy restrooms and private space within multi-user facilities for anyone who has privacy concerns. It is not a defense to a charge of violating the NYCHRL that some people, such as customers or employees, may object to sharing a facility or participating in a program with a transgender, non-binary, or gender non-conforming person.
- Employers cannot require individuals to conform to stereotypical gender norms, such as those related to behavior, clothing, hairstyles, activities, voice, mannerisms or body characteristics. For example, an employer cannot enforce a policy prohibiting only men from wearing jewelry or make-up at work.
- Employers cannot require dress codes, uniforms, grooming standards or appearance standards that impose different requirements based upon sex or gender (even for reasons related to customer preference). While employers can provide different uniform options that are traditionally associated with men or women, it is unlawful to require an employee to wear one style instead of the other. The Commission notes in its Guidance that this standard differs from federal law, which allows such distinctions unless they impose an undue burden. Under the NYCHRL, any differentiation is unlawful even if it does not impose such a burden.
- Per the NYCCHR's rules and Guidance, the NYCHRL makes it unlawful for an employer to offer benefits in a way that is discriminatory on the basis of gender. Employee benefit plans that are covered by and comply with the Employee Retirement Income Security Act (ERISA) and federal antidiscrimination laws will also be considered compliant with the NYCHRL. For a health plan to not discriminate on the basis of gender, it must cover transgender care, including, but not limited to, transition-related or gender-affirming care. Federal law also requires that self-insured plans governed by the Affordable Care Act (ACA) cover medically necessary transition-related care. New York state law also requires that fully-insured New York plans fully cover such care.
- Among the examples of discriminatory benefits provided in the NYCCHR's rules is providing twelve weeks of paid parental leave to mothers, but only two weeks to fathers. Different parental leave is permissible if it is based on physical recovery from childbirth, but not if it is based solely on an individual's gender.
- Companies must handle requests for accommodation in a non-discriminatory manner. For example, a leave request for medical or health care needs related to an individual's gender identity should be treated in the same manner as requests related to other medical concerns.
- The NYCHRL also prohibits discriminatory harassment or violence motivated by a person's actual or perceived gender identity or expression. This includes violence, the threat of violence, threatening verbal harassment, use of force, intimidation or coercion, defacing or damaging real property and cyberbullying.
- It is unlawful to retaliate against an individual for opposing discrimination or requesting a reasonable accommodation for a disability based on gender identity or expression. Protected opposition includes making an internal or external complaint of discrimination or participating in an investigation of discrimination. This includes opposition to what the individual believes in good faith to be unlawful discrimination, even if such conduct is ultimately determined to not violate the NYCHRL.