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 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.
The new regulation provides that:
- Discrimination because of gender identity or because of transgender status is sex discrimination;
- The protections in the New York State Human Rights Law (the “State Human Rights Law” or “NYSHRL”) against sex discrimination also prohibit discrimination on the basis of gender identity or transgender status;
- Harassment on the basis of an individual’s gender identity or transgender status is sexual harassment;
- Refusal to provide reasonable accommodation for individuals with gender dysphoria, where requested and necessary, is disability discrimination. (For the NYSDHR’s regulation concerning provision of reasonable accommodation by employers, see 9 N.Y.C.R.R. § 466.11.)
- Harassment on the basis of an individual’s gender dysphoria is harassment on the basis of disability.
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 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.
Take-Aways for Employers
Employers in 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 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.