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New York City Employer and Landlord Alert

Preventing Against Gender Identity Discrimination

Experts estimate that there are more than 25,000 transgender and gender non-conforming people that reside in New York City. As a result, it is very important that New York City employers and landlords become familiar with their obligations when addressing the gender identity of their employees or tenants. The failure to do so can result in hefty fines and discrimination claims brought against offenders.

The New York City Commission on Human Rights has been on the forefront protecting individuals' expression of their gender identity and has issued guidance and enacted laws to protect against discrimination. Under the New York City Human Rights Law, 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. Gender discrimination is prohibited in employment, housing, public accommodations and discriminatory harassment and exists whenever there is disparate treatment of an individual on account of gender. When an individual is treated "less well than others on account of their gender," that is gender discrimination under the New York City Human Rights Law.

The Commission can impose civil penalties of up to $125,000 for violations, which can be doubled if the violations are found to be willful, wanton, or malicious. Employers and landlords must become familiar with the guidance issued by the Commission that includes violations for the following:

  • Intentionally failing to use an individual's preferred name, pronoun or title. For example, repeatedly calling a transgender woman "him" or "Mr." when she has made it clear that she prefers female pronouns and a female title.
  • Refusing to allow individuals to use single-sex facilities, such as bathrooms or locker rooms, and participate in single-sex programs, consistent with their gender identity. For example, barring a transgender woman from a women's restroom out of concern that she will make others uncomfortable.
  • Enforcing dress codes, uniforms, and grooming standards that impose different requirements based on sex or gender. For example, enforcing a policy that requires men to wear ties or women to wear skirts.
  • Failing to providing employee health benefits that cover gender-affirming care or failing to provide reasonable accommodations for individuals undergoing gender transition, including medical appointments and recovery, where such reasonable accommodations are provided to other employees.

The foregoing are only a few issues that employers and landlords must address in setting policies to avoid gender identity discrimination. It is suggested that employers and landlords become familiar with the latest guidance issued by the New York City Commission on Human Rights and seek legal counsel to interpret and review your current polices to ensure compliance and address other anti-discrimination issues.

If you would like more information or if your business has been named in a discrimination action, please contact Nicoll Davis & Spinella LLP. At Nicoll Davis & Spinella, our team of lawyers experienced in compliance can help effectively minimize your company's risk and avoid the unnecessary liabilities many businesses unknowingly face. Please consider our Outside General CounselTM program as a solution to help effectively address your company's compliance issues. Call us at 201-712-1616 or (212) 972-0786, or contact us online.

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