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.
The California Department of Fair Employment and Housing recently published a model Equal Opportunity Policy.
Under California law, employers are required to “take reasonable steps to prevent and promptly correct discriminatory and harassing conduct.” A part of this obligation includes a requirement that employers develop a harassment, discrimination, and retaliation prevention policy that: Continue reading NEW GUIDANCE: DFEH Publishes Model Equal Employment Opportunity Policy
On June 4, 2018, the US Supreme Court ruled, in a 7-2 decision, that a business owner’s Free Exercise Clause rights were not given proper consideration by the Colorado Civil Rights Commission when the baker, Jack Phillips, was ordered to design and sell a wedding cake to a same-sex couple.
However, the Court’s ruling in Masterpiece Cakeshop, Inc v. Colorado Civil Rights Commission is more of a condemnation of the Colorado commission’s perceived hostility towards the business owner’s beliefs than a signal to other businesses looking to defend against claims of bias.
The Road to the Supreme Court
After the Colorado Civil Rights Commission’s initial ruling in favor of the same-sex couple, Phillips appealed the decision against him and found his case making its way to the highest court in the land. The Supreme Court ruled in favor of the bakery, finding that the Colorado Civil Rights Commission did not handle the “delicate” questions presented in this case “with the religious neutrality that the Constitution requires.” Continue reading US Supreme Court’s Cakeshop Decision Does Not Equal Right To Discriminate
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
In what may turn out to be the start of a significant shift among federal appellate courts, the Second Circuit Court of Appeals recently held that discrimination on the basis of sexual orientation is prohibited under Title VII of the Civil Rights Act.
In Zarda v. Altitude Express, Inc., the Second Circuit reconsidered its own previous ruling that Title VII does not cover sexual orientation discrimination claims. Zarda was a homosexual skydiving instructor who brought a sex discrimination claim under Title VII alleging he was terminated because he did not conform to male gender stereotypes as a result of his sexual orientation.
The Second Circuit initially (and begrudgingly) followed their own precedent and held that Title VII did not cover such claims. Upon reconsideration by the full court, the court overruled its own precedent and held that Title VII does recognize sexual orientation within the framework of sex discrimination claims. Specifically, the court found that discrimination based on an individual’s sexual orientation is discrimination “because of sex” as prohibited by Title VII.
Significance of this Case
While Zarda is not the first time an appellate court has found sexual orientation protected under Title VII (the Eleventh Circuit previously found such protections in Hively v. Ivy Tech Community College of Indiana), it does show a significant trend among federal appellate courts in recognizing a more expansive interpretation of the protections under Title VII. Numerous federal district courts have also recognized such protections, as has the Equal Employment Opportunity Commission (EEOC), which issued guidance in 2015 officially recognizing sexual orientation as a protected class under Title VII.
Employers should ensure their antiharassment and discrimination policies reflect the protections afforded under federal and state law, including protections against discrimination and harassment based on an individual’s sexual orientation. Additionally, directors, officers, managers, and employees should be provided with antiharassment and discrimination training that includes discrimination or harassment on the basis of an individual’s sexual orientation and gender identity.
The sea change in the interpretation and enforcement of Title VII is coming. Now is the time to prepare.
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.