On October 22, 2015, the New York State Division on Human Rights (the “Division on Human Rights,” the “Division,” or the “NYSDHR”) issued a then-proposed regulation prohibiting employers with four or more employees from firing or refusing to hire an individual, and from discriminating against an individual in compensation or in the terms and conditions of employment, because of the individual’s gender identity, transgender status, or gender dysphoria. The New York State Division on Human Rights’ new regulation bans discrimination against transgender employees. The new regulation (also referred to herein as the “new rule”) took effect on January 20, 2016. The new rule is codified as 9 N.Y.C.R.R. § 466.13.
Similarly, in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), the U.S. Supreme Court held that discrimination in employment on the basis of an individual’s sexual orientation or transgender status violates Title VII of the (federal) Civil Rights Act of 1964, as amended (“Title VII”).
The new New York State regulation provides that:
The new rule defines “Gender identity” as “having or being perceived as having a gender identity, self-image, appearance, behavior or expression whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth.”
The new regulation provides that a “transgender person” means “an individual who has a gender identity different from the sex assigned to that individual at birth.”
The new rule defines “Gender dysphoria” as “a recognized medical condition related to an individual having a gender identity from the sex assigned at birth.”
The new regulation makes New York State one of twenty states which, by statute or regulation, prohibit discrimination in employment based on gender identity. For example, in New Jersey, the New Jersey Law Against Discrimination, N.J.S.A. §§ 10:5-1 – 10:5-30, prohibits all public and private employers, because of, among other protected characteristics, the “gender identity or expression” of any individual, to refuse to hire or employ or to bar or to discharge or require to retire from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.
Employers in New York City (including the borough of Manhattan) and throughout the remainder of New York State must review and modify their present workplace policies, employee handbooks, and job advertisements to make clear that the employers do not discriminate in hiring, compensation, or the terms and conditions of employment based on an applicant’s or an employee’s gender identity, transgender status, or gender dysphoria. So, too, employers in the Empire State should train supervisors and managers concerning the employer’s and the trainees’ obligations not to base employment decisions on a worker’s or a job applicant’s gender identity, transgender status, or gender dysphoria.
Further, employers in New York City (including the borough of Manhattan) and throughout the rest of New York State must take actions which permit employees, job applicants, or members with gender dysphoria which is known to the employer to perform in a reasonable manner the activities involved in the job or occupation sought or held.
If your company needs assistance or guidance on a labor and employment issue and your company is located in the New York City metro area, call borough of Manhattan Wrongful Termination Attorney David S. Rich at (347) 472-1026.
David Rich
David S. Rich is the founding member of the Law Offices of David S. Rich, LLC,
a Manhattan Employment and Business Litigation Law Firm, in New
York City and in Englewood Cliffs, New Jersey...View Profile