Employment Law Client Alert: New York City Commission on Human Rights' New Enforcement Guidelines on the Basis of Gender Identity or Expression

The New York City Human Rights Commission has provided new enforcement guidelines intended to ensure that the City's gender discrimination law applies equally to discrimination against those individuals who identify themselves as transgender and/or who consider themselves to be gender nonconforming. It includes discrimination on the basis of gender identity, gender expression and transgender status.

The definition of gender under these guidelines is broad. Gender discrimination can be based on one's perceived or actual gender identity, which may or may not conform to one's sex assigned at birth, or on the ways in which one expresses gender, such as through appearance or communication style. The law requires an understanding of such terms as "Cisgender", "Gender Expression" and "intersex" which is a term used to refer to a person whose reproductive or sexual anatomy and/or chromosomal pattern does not fit the typical definitions of male or female, among others. Unlawful gender discrimination is prohibited in the areas of employment, public accommodations and/or housing.

The guidelines also make it clear that the New York City Human Rights Law requires employers in covered entities to use "an individual's preferred name, pronoun and title regardless of the individual's sex assigned at birth, anatomy, gender, medical history, appearance or the sex indicated on an individual's identification." Moreover, the New York City Human Rights Law requires that individuals be permitted to use single-sex facilities, such as bathrooms or locker rooms, and participate in single-sex programs, consistent with their gender, regardless of their sex assigned at birth, anatomy, medical history, appearance or the sex indicated on their identification. Finally, the guidelines cover "sex stereotyping" and the prohibition against "imposing different uniforms or grooming standards based on sex or gender".

Penalties include $125,000 for each violation and up to $250,000 for each violation that is the result of "willful, wanton or malicious conduct." This will be in addition to any damages that one may obtain in a civil suit which could include back and front pay.

Employers with employees located in New York City would be wise to familiarize themselves with these guidelines as they might not be as familiar with issues involving the transgender community as they would in connection with more familiar gender-based claims.