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.
The New York State Division of Human Rights recently enacted regulations (Section 466.13 entitled “Discrimination on the Basis of Gender Identity”) relating to the New York State Human Rights Law that expressly provide transgender individuals with protection against discrimination and harassment in employment.
These new regulations clarify that the protections provided under the New York State Human Rights Law extend to gender identity and transgender individuals. In other words, harassment and/or discrimination on the basis of gender identity or transgender status is also prohibited under the New York State Human Rights Law.
Under the new regulations, “gender identity” is defined 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,” and a “transgender person” is defined as “an individual who has a gender identity different from the sex assigned to him or her at birth.”
In addition, the new regulations also extend disability discrimination protections to transgender individuals. Specifically, the regulations include a prohibition against discrimination or harassment on the basis of an individual’s gender dysphoria, which is defined as “a recognized medical condition related to an individual having a gender identity different from the sex assigned to him or her at birth.” In addition, the regulations extend an employer’s obligation to provide a reasonable accommodation for a disability to include reasonable accommodations for persons with gender dysphoria, when such accommodations are requested, are necessary, and are otherwise in accordance with the regulations concerning reasonable accommodations under the New York State Human Rights Law.
Impact on New York Employers
In light of these new regulations, New York employers should review their anti-discrimination/anti-harassment and reasonable accommodation policies and ensure that they include provisions relating to transgender individuals. In addition, New York employers should provide training to all employees to educate them about the legal protections afforded to transgender employees.