NYC Human Rights Commission Releases Legal Enforcement Guidance on Discrimination on the Basis of Gender Identity or Expression

To promote equal treatment of individuals, specifically individuals whose gender and self-image do not accord with the legal sex assigned to them at birth, the New York City Council passed the Transgender Rights Bill in 2002. The goal of the law was to expand the scope of the gender-based protections guaranteed under the New York City Human Rights Law (NYCHRL). The NYCHRL prohibits discrimination in New York City based on the following protected classes:

  • Race
  • Religion/Creed
  • Color
  • Age
  • National origin
  • Alienage or citizenship status
  • Gender (including sexual harassment)
  • Gender identity
  • Sexual orientation
  • Disability
  • Pregnancy
  • Marital status and partnership status

On December 21, 2015, the New York City Commission on Human Rights released a legal enforcement guidance of the NYCHRL’s protections as they apply to discrimination based on gender, gender identity and gender expression. The Guidance provides the different forms of discriminatory conduct in employment, housing, and public accommodations. The violations of the NYC Human Rights Law on gender discrimination include:

  • Failing to use an individual’s preferred name or pronoun
  • Refusing to allow individuals to use single-sex facilities and programs consistent with their gender
  • Sex stereotyping
  • Imposing different uniforms or grooming standards on sex or gender
  • Providing employee benefits that discriminate based on gender
  • Considering gender when evaluating requests for accommodations
  • Engaging in discriminatory harassment
  • Engaging in retaliation

The Guidance also includes examples of violations, as some of these cases may seem lawful under federal law. For example, under the NYCHRL, employers may not require dress codes or uniforms that impose different requirements for individuals based on sex or gender. However, under the federal law, requiring a dress code with different requirements for men and women is permitted as long as employers do not impose an undue burden on the individual.

Employers that violate the NYCHRL can receive a fine of up to $125,000, and a fine of up to $250,000 for violations that are willful, wanton, or malicious conduct. To avoid violations, employers should review the NYCHRL and update their employment policies. For additional information, visit the NYC Human Right Commission’s website.

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