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Transgender Employees New York

Transgender Employees in New York

There are an estimated 1.4 million individuals in the United States who identify as transgender. People may consider themselves transgender or gender nonconforming if their gender identity is inconsistent with the sex they were assigned at birth. Transgender individuals often go through a transition, where they adopt different pronouns, receive hormone treatments, and sometimes undergo surgery. With these diverse circumstances evolving for many Americans, you may have transgender employees in your workplace right now without even realizing it.

Many new questions are arising regarding the applicability of employment laws to transgender status. At the federal level, this issue remains very much in transition. In New York, however, the law is clearer. In 2016, the New York State Division of Human Rights issued regulations clarifying that the New York Human Rights Law protects transgender and gender non-conforming individuals in several ways.

It is essential for employers to be aware of these regulations to ensure their policies and practices are compliant.

Who Are Transgender Employees?

The New York Human Rights Law has long prohibited discrimination in employment based on a person’s sex. The 2006 regulations expressly expanded the scope of that protection by defining “sex” to include “gender identity and the status of being transgender.”

The regulations include the following definitions:

Gender Identity “means having or being perceived as having a gender identity different from the sex assigned to that individual at birth.”

Transgender describes an individual “who has a gender identity different from the sex assigned to that individual at birth.”

Gender dysphoria “is a recognized medical condition related to an individual having a gender identity different from the sex assigned at birth.”

Discrimination

The New York Human Rights Law applies to employers with at least 4 employees. Covered employers may not discriminate in regards to employment based on sex. With the expanded definitions, this means that covered employers cannot discriminate regarding gender identity or transgender status.

The Human Rights Law also prohibits disability discrimination and requires employees to make reasonable accommodations for employees with disabilities. The 2016 regulations further clarified that the term disability, as used in the law, includes gender dysphoria. Thus, employers may not discriminate against employees based on gender dysphoria. The regulations also specifically state that “[r]efusal to provide reasonable accommodation for persons with gender dysphoria or other condition meeting the definition of disability in the Human Rights Law . . . is disability discrimination.”

Harassment

The Human Rights Law also prohibits workplace harassment based on sex and disability. The regulations now establish that harassment on the basis of transgender status is unlawful. This means employers and other employees may not harass an employee based on their gender identity or transgender status. Thus, employers cannot ask about an applicant’s gender or transgender status during a job interview. And employees must respect a transgender individual’s preferred name and pronouns, as insisting on alternative names or pronouns could constitute harassment.

Notably, the Human Rights Law’s sexual harassment protections apply to all employees, even if their employer has fewer than 4 employees.

Bathroom Usage

One particular area of confusion and discomfort regarding transgender individuals is bathroom usage. Consistent with the broad protections of the Human Rights Law, New York employers generally should allow employees to access the restroom that matches their gender identity, regardless of whether it makes other employees or customers uncomfortable. Gender neutral bathrooms are an option, but employers probably may not force particular employees to use a single stall restroom if others are also available for employee use.

Illustrative School District Guidance

New York State has issued several guidance documents regarding transgender bathroom use in public schools. Although not directly applicable to employers (other than schools), the principles demonstrate the State’s general approach toward the issue. As recently as February 2018, the State Attorney General’s Office and the Commissioner of Education issued a joint reminder that school districts in New York State have an obligation to provide all students with “a safe and nondiscriminatory educational environment without regard to their gender identity.”

The State document acknowledged that federal law arguably does not impose these requirements, but emphasized that New York school districts “have independent duties to protect transgender students from discrimination and harassment in their schools and at all school functions. This includes an obligation to allow students to use bathrooms and other facilities consistent with their gender identities. Furthermore, New York’s Dignity for All Students Act prohibits discrimination and harassment, on school property or at a school event, on the basis of a student’s gender identity or expression.”

Similar juxtaposition applies in the workplace. Whereas the legalities remain uncertain at the federal level, New York law provides more direct protection to transgender applicants and employees.

Dress Codes

Legal issues involving dress codes are complex. It is often best not to set different dress standards for male and female employees without compelling business reasons. And to avoid potential discrimination claims under the Human Rights Law, employers should allow employees to dress according to their gender identity.

New York City Human Rights Law

The New York City Human Rights Law also includes broad protection for transgender workers.  The New York City Commission on Human Rights has issued guidance that goes into greater detail than the state-wide regulations. In fact the guidance begins with an affirmation that the New York City Human Rights Law must be interpreted “’independently from similar or identical provisions of New York state or federal statutes,’ such that ‘similarly worded provisions of federal and state civil rights laws [are] a floor below which the City’s Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise.’”

Organizations with employees working within New York City should become familiar with the city’s additional restrictions and requirements.

Conclusion

The application of existing laws to situations involving transgender and gender nonconforming individuals is rapidly developing. Many employers who have never had to consider issues related to transgender employees will need to at some point in he future. Thus, it will be critical that employers stay up-to-date on potential changes to federal, state, and local laws.

One way to keep informed about this and other workplace legal issues is to subscribe to Horton Law’s monthly email newsletter. You will also receive announcements about our complimentary webinars.

Happy Employees

Happy Employees Don’t Sue

I’ve been representing companies regarding employment law matters for almost 13 years now. Based on this experience, I want to share an observation. It’s a relatively obvious, simple, and practical one. Yet, I believe it will help many employers if they take it to heart. So, here it is: happy employees seldom make legal trouble for their employers!

There is a staggering number of laws that regulate the employment relationship and work environment. My job is to help organizations follow those laws as well as possible, but perfect compliance probably isn’t feasible. However, substantial compliance is. And that may be sufficient to stay out of trouble as long as you generally treat your employees well.

Unhappy Employees

Most companies have many happy employees. If nothing else, most of them are grateful to be working there. They are either lucky to have a job in the first place (if they have low skills or the economy is bad) or they had job options and chose your company (e.g., marketable skills, good economy). But various circumstances can sour an employee’s mood.

Of course, employers don’t have complete control over their employees’ happiness. Personal, family, and other outside influences play a role in their overall attitude, demeanor, perspective, etc. But the employees’ feelings about their job go a long way in determining how likely they are to bring a claim against the company.

Employee A

Take the case of Employee A. She is a productive office worker who has been with the company for five years. She has received regular salary bumps each year and likes her co-workers.

Employee A has two young children at home. One day she asks for the afternoon off to go to a school function. Her boss says no without any good reason. Being a good employee, she stays at work and luckily her husband can attend the school event that day. The same situation arises a few more times over the school year. Then, one day, Employee A learns from a co-worker that their company was misclassifying them as exempt, such that Employee A (among others) should have been receiving overtime (in her case since she started working there).

Employee A is a generally happy person, but hasn’t liked missing her children’s events. She is particularly frustrated that she never received an explanation for why she had to work. In her mind, the office would have been fine those few afternoons without her. We wouldn’t be shocked if Employee A now takes out that frustration on her employer by calling the Department of Labor or an attorney to complain about unpaid overtime, would we?

Employee B

Now let’s consider Employee B. He’s a part-time employee in his 60s. He just joined the company last year. He doesn’t talk much, but gets his job (data entry) done accurately.

A new, much younger, female employee asks Employee B to lunch one day. Surprised by the sudden invitation, he declines, but agrees to eat with her another day. She asks again the following week, and he confesses that he’s not sure his wife would like it if he went to lunch with her alone. The woman finds this shocking and complains to management. The next day Employee B’s boss tells him he must eat lunch with the other employee or else he could get in trouble for violating the company’s anti-harassment policy. Employee B explains that it would make him very uncomfortable, but the boss persists.

Employee B relents and goes out to a local restaurant with the younger co-worker. They eat, make small talk about their jobs, and return to work.

The next week, the young woman tells co-workers that Employee B is dull and old school. She says she tried to be nice and get to know him out of pity for “the old man,” but that he’s so miserable, she’s sorry she tried. Hearing about what she was saying, Employee B asked his boss to look into it. The boss just told him he needs to be friendlier and people won’t complain about him.

A month later, Employee B applies for a full-time opening with the company. He doesn’t get the position. His boss tells him that the (younger) person promoted was more qualified because he (unlike Employee B) had graduated college. Under these circumstances, would we expect Employee B to accept that explanation? Even if he really should have been more personable at work, the way his boss treated him probably increases the chance that he would file an age discrimination claim against the company.

Happy Employees

Now let’s change the two scenarios above to show how better managers may have handled them. Subtle shifts in approach could yield substantially different outcomes.

Employee A

Remember the mom who wanted the afternoon off to go to her children’s school? Suppose her boss had allowed her to use vacation time to take a half day the first time she asked, but noted that the company may not always be able to accommodate these requests. The boss perhaps added that more notice would be helpful in the future.

Over time, the employee makes similar requests. Sometimes she is excused from work. Other times her manager explains that it would be a hardship on the company for her to take the time off. And, ideally, the boss gives a logical reason for denying the time off on each occasion.

Now when Employee A learns that the company had made a mistake in treating her as exempt, she doesn’t rush to the Department of Labor or encourage other employees to do so. Instead, she meets with her boss to discuss the matter. She is satisfied to hear that the company will pay her for overtime worked over the past year and will raise her pay going forward so that she properly meets the exemption requirements. Yes, this still costs the company more, but it is less than what the employee might have demanded under applicable laws. Still, Employee A is happy because she has been treated humanely in the past and accepts that the company is trying to balance its needs and hers.

Employee B

Now, what should have happened when Employee B declined his younger co-worker’s lunch invitation? We’ll make some small changes in that scenario in hopes of a better outcome.

Instead of ordering Employee B to have lunch with the female co-worker, his boss could have arranged a team lunch. He could have explained to Employee B that it may be a good idea for him to interact more with co-workers and that this may be a good opportunity to “break the ice.” Employee B agrees that he’s open to being more friendly at work, but didn’t want to be taken the wrong way or to accidentally offend anyone.

The lunch goes off fine. Employee B interacts with the co-worker who originally invited him to lunch among others. Nothing inappropriate or remarkable transpired. Nonetheless, the young woman still complains about Employee B to other employees, including references about his age. When Employee B reports this to his boss, he is asked to ignore it and just try to develop better relationships with other employees for now. The boss adds that he knows she shouldn’t be saying these things, but that she is brilliant in her field and, frankly, just not that good with interpersonal relationships.

Later when Employee B does not get the promotion, the boss again explains that younger person who received the full-time position has better credentials, but that the company will be happy to consider Employee B for openings in the future. Even though Employee B’s boss probably should have taken further action regarding the co-worker’s negative comments, Employee B feels like his manager is listening to him, and they’re more or less on the same page. So he doesn’t gripe about being passed over and keeps working hard so he can pursue the next opportunity that arises.

What’s Different?

What’s fundamentally different about the happy and unhappy employees in these scenarios? The happy employees feel their managers respect them as people. They don’t always see eye-to-eye, but the employees’ feelings are at least weighed before decisions are made.

We can’t actually say which of these employees are “happy” or “unhappy” in the big picture. We’re looking at a relative feeling about their jobs. The point here is not that companies should always do what their employees want in every situation. That wouldn’t work in the long run and would end up alienating many employees (like the ones who are not comfortable asking for what they want). But companies, through management, can and should demonstrate a commitment to respect and a pursuit of fairness. Most employees–at least, good ones–perceive those qualities and thrive off of them.

Don’t Take This Too Far

When I say happy employees don’t sue, it’s not a guarantee. You can treat someone well 100 times and then cross the line once to your peril. People can more easily forgive some transgressions than others (e.g., payroll errors vs. sexual harassment). And some people are just harder to please.

But in my experience representing employers, how employees generally feel about their jobs, co-workers, managers, and the organization is usually relevant in weighing risks of grievances, administrative charges, litigation, etc. It just makes sense that treating people well is better for business overall.

Takeaways

Employment law compliance is a monumental task that grows more complex with larger workplaces. However, it doesn’t take much employment law expertise to try to do the right thing.

Employers who focus solely on the bare minimum they can get away with legally are probably more apt to make compliance mistakes. Or at least to be taken to task for those mistakes.

Conversely, employers who focus on treating employees with respect can probably get away with more technical errors or even complete misapplication (or inapplication) of the laws.

But, not surprisingly, organizations with the strongest commitment to showing respect to their employees often do the best job at legal compliance. And they usually have happy employees.

 

For more best practices and updates on labor and employment law, please subscribe to the Horton Law email newsletter.

Labor Strike Basics

Strike Basics for Employers

The National Labor Relations Act (NLRA) allows both union and nonunion employees in the private sector to participate in strikes. Make sure you understand when and how a strike could affect your company before one occurs.

[Read here to see whether your organization is subject to the NLRA.]

What Is a Strike?

A strike is a work stoppage resulting from employees collectively refusing to work. Since most union contracts have no-strike clauses, strikes most often occur during negotiations after the collective bargaining agreement expires. Official strikes take place after a majority vote by union members.

Although strikes are rare, employers should be aware of the labor laws surrounding this process. While the NLRA guarantees the right to strike, it also places limitations on exercising this right. Whether a strike is lawful depends on its purpose, timing, and the conduct of striking employees.

Employer Limitations

Companies cannot terminate or take other adverse actions against employees who participate in legal strikes. Employers also may not harass or otherwise question employees about their intent to strike or offer special benefits or other incentives in exchange for individual employees not striking.

Types of Strikes

Strikes generally fall into one of two categories: economic strikes and unfair labor practice strikes. Economic strikes occur in response to complaints about work conditions, such as wages or hours. Unfair labor practice strikes protest alleged unfair labor practices by an employer.

Unfair labor practice strikers have greater rights to reinstatement than economic strikers, whom employers may permanently replace. After an unfair labor practice strike ends, the employer must terminate temporary replacement workers and allow the strikers to return to their positions.

The NLRA does not protect all strikes. It is illegal for employees to strike against secondary employers or engage in “sympathy” strikes. Sit down strikes and workplace slowdowns also do not receive NLRA protections. “Sick-outs,” where employees who cannot legally strike (e.g., because of a no-strike clause) collectively call in sick, are not protected.

“Wildcat strikes” occur when represented employees engage in a work stoppage without union authorization. These unofficial strikes are usually illegal.

Employees who participate in illegal strikes may be subject to discharge.

Strike Pay

Employers do not have to pay striking employees or offer benefits during the strike. Unions often have strike funds that provide some pay or occasionally employee benefits. Striking employees do not receive unemployment benefits.

Picketing

Picketing often occurs during strikes. It involves employees congregating outside the employer’s location to protest grievances and discourage others (employees, customers, vendors, etc.) from crossing the picket line. Similar to the right to strike, the right to picket is subject to limitations relating to its purpose, timing, and potential misconduct on the picket line.

Employers can discipline employees for inappropriate conduct during picketing, such as physically blocking workers from entering the building or threatening violence.

Unions may fine employees who cross the picket line.

Healthcare Exception

Unlike employees in other industries, employees working for healthcare institutions must give at least a 10 days’ written notice to the employer and the Federal Mediation and Conciliation Service before picketing or going on strike. The notice must indicate when (date and time) the activity will begin.

Conclusion

The laws surrounding labor strikes are complex, and employers who anticipate a strike are highly recommended to obtain the assistance of an experienced labor lawyer.

The good news is strikes are rare. Almost all union contracts in the United States eventually settle without a strike. Nonetheless, employers who anticipate a work stoppage may take out strike insurance to offset potential losses.

For more updates on emerging labor and employment law topics, please subscribe to the Horton Law email newsletter.