On January 25, 2019, New York Governor Andrew Cuomo signed The Gender Expression Non-Discrimination Act (GENDA) into law. This new law amends the New York State Human Rights Law (NYSHRL) by adding gender identity and gender expression to the list of protected classes. With this addition, discrimination in the workplace based on an individual’s gender identity or gender expression is now prohibited.
“The term “gender identity or expression” means a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender”.
What does this mean for employers?
- Employers will have to develop and implement new anti-discrimination policies and anti-harassment policies.
- Make sure anti-discrimination/anti-harassment training programs address gender identity or expression discrimination.
- Training managers on detecting such discrimination will be needed.
- Education/train employees on the forms of harassment and discrimination.
- Provide reasonable accommodation if needed.
This is the million-dollar question…literally (well almost). Violating the state and federal anti-discrimination laws can cost employers thousands of dollars per violation.
“Can’t an employer impose a dress code?”, you ask. Do you have to allow employees to show-up in any “get up” they’ve imagined for the day, costing you customers, reputation and possibly your business.
Before we answer that question, let’s look at the issue from another perspective.
The law is continually expanding to cover more individuals and the definition of sex has grown to cover gender expression, gender identity, transgender, sexual orientation and other LGBT groups.
Because our definition of sex is no longer limited to “boy” or “girl”, our dress codes will also need to expand. Continue reading Don’t Tell Me How To Dress, Or Can You?
In new Guidance Materials (“Guidance On Discrimination On The Basis Of Sex Under The Pennsylvania Human Relations Act”), the Pennsylvania Human Rights Commission has stated that it will consider sex discrimination to include not only an individual’s biological sex, but also sexual orientation, gender identity, gender expression, gender transition, and/or transgender status.
What this means for employers – it is recommended that employers take note of this expansion in the definition of sex and educate their managers/supervisors that an employee’s LGBT status is protected under Pennsylvania law.
The Cuyahoga County Council recently passed County Ordinance #O2018-0009, while protects individuals from discrimination based on sexual orientation and gender identity in employment, among other things. Employers in this county should review the new ordinance and provide training to their managers about the new ordinance.
On June 8, 2018, New Hampshire Governor Chris Sununu signed HB1319 (An Act Prohibiting Discrimination Based on Gender Identity) into law. This new law, which goes into effect on July 8, 2018, amends the New Hampshire Law Against Discrimination (NHLAD) to include gender identity to the list of protected classes under the NHLAD.
Under this new law, employers are prohibited from discriminating against an individual based on gender identity with respect to the terms and conditions of employment, including hiring, compensation, employment benefits, advancement, employment training, assignments and termination of employment. In addition, workplace harassment of an individual because of his/her gender identity is also strictly prohibited.
For purposes of the new law, “gender identity” is defined as “a person’s gender-related identity, appearance, or behavior, whether or not that gender-related identity, appearance, or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” Continue reading NEW LAW: New Hampshire Adds Gender Identity As Protected Class
The movement towards gender-free restrooms has continued to gain momentum with Vermont joining as the latest state to authorize single-user restrooms for use by all genders in public facilities.
The new law (H.333), signed by Governor Phil Scott, will require all single-user bathrooms in public buildings or places of public accommodation to be marked as gender-neutral.
For purposes of the new law, a “single-user bathroom” is defined as “a single-occupancy restroom with at least one water closet and with an outer door that can be locked by the occupant.”
The law, which goes into effect on July 1, 2018, has been embraced by the state’s LGBT community, who has been vocal about protecting transgender individuals by embracing equality and inclusivity. Gov. Scott said, “This is especially important for kids in school who face anxiety and bullying over something as simple as using the restroom. Treating others in this way is not who we are as Vermonters, and I hope the signing of this bill will send a powerful message that that’s not the way we act.” Continue reading NEW LAW — Gender-Neutral Restrooms Coming to Vermont
In a major revision of the state’s anti-discrimination law, Washington has passed amendments to its Equal Pay Act to address income disparities, employer discrimination and retaliation practices in the state. The amendment will make it a misdemeanor for an employer to discriminate in providing compensation based on the gender of similarly employed employees. With an effective date of June 7, 2018, employers should begin preparations to comply with these significant changes in the law.
What the New Law Does
Key amendments to Washington’s Equal Pay law include: Continue reading Washington Expands Equal Pay Protections
In continuing with the theme of the year, another appellate court has taken more expansive view of the protections under Title VII to extend its previous limits to cover a newer issue: discrimination on the basis on an individual’s transgender status. In so doing, the Sixth Circuit Court of Appeals became the first federal appellate court to recognize such rights under the federal law.
R.G & G.R Harris Funeral Home hired Aimee Stephens when she was living and presenting as a man. She worked for the funeral home for approximately 6 years, until in 2013, when she informed the owner that she intended to begin living and working as a woman. The owner terminated Aimee’s employment two weeks later on the basis that “the public would not be accepting of her transition.”
Aimee filed a complaint with the EEOC which brought a lawsuit against the funeral home for discrimination based on Aimee’s sex and gender identity. The district court, interpreting Title VII within its traditional limits, dismissed the claims against the funeral home alleging discrimination based on transgender status.
The Sixth Circuit disagreed. In taking a more expansive approach to Title VII, the court ruled that it was “analytically impossible” to terminate an employee based on their transgender status without being motived, at least in part, by the employee’s sex. Thus, the court found “[discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex” in violation of Title VII.
What Does This Mean for Employers?
Most employers are by now well acquainted with the reality that the EEOC will bring and has brought charges for perceived discrimination or harassment of employees based on their transgender status. The EEOC has held that position since 2012. What’s changed now is that a federal appellate court has affirmed the EEOC’s position. This will likely encourage employees, and their attorneys, to file claims for transgender discrimination where they would have otherwise been hesitant to do so. Continue reading The Change Continues: Transgender Status Ruled Protected Under Title VII
The EEOC recently released the national enforcement data for the 2017 fiscal year. According to this report, the total number of EEOC charges received in 2017 decreased from 91,503 received in 2016 to 84,254 received in 2017.
In addition, according to the report, in 2017, the EEOC resolved 99,109 charges and secured more than $398 million for victims of discrimination in private, federal and state and local government workplaces. Most notably, the EEOC received 6,696 sexual harassment charges and 1,762 LGBT-based sexual discrimination charges and obtained $46.3 million and $16.1 million in monetary benefits respectively for resolving these charges.
Retaliation claims remain the most popular claims filed. Race claims, Disability claims, Sex/Gender claims and Age discrimination charges round out the top five. The total breakdown of charges by type is as follows:
|Equal Pay Act
|Genetic Information Non-Discrimination Act
In addition, the EEOC has also released the breakdown of claims received by state. The top 10 states are:
|| Type of Charge
The full state breakdown of claims is available here.
As previously reported (in NEW LAW: New Requirements for California Sexual Harassment Training) aside from increasing California’s sexual harassment training requirements to include discussing harassment based on gender identity, gender expression, and sexual orientation and including practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation, Senate Bill 396 also requires all California employers post a workplace poster related to transgender rights.
In order to help employers comply with this new posting requirement, the California Department of Fair Employment and Housing (DFEH) recently published the English and Spanish language versions of the poster. Starting January 1, 2018, the “Transgender Rights in the Workplace” poster (as with all DFEH-mandatory posters) must be posted “in a prominent and accessible location in the workplace” where it can be “easily seen and read by all employees and job applicants.” In addition, if ten percent or more of a company’s workforce speaks a language other than English, the poster must also be displayed in that language (or languages).
It is recommended that all California employers download the new poster and display it in the workplace as soon as possible.