Category: Discrimination

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.

Employee Drug Addiction & Alcoholism

Employee Drug Addiction and Alcoholism in New York

There are rising costs associated with employee substance abuse across all organizations. It can lead to serious safety issues, disruption of operations, more leave time, and lower productivity. It can also lead to greater use of healthcare and management resources. Nonetheless, employers cannot take adverse employment action against employees based on drug addiction or alcoholism. But employers can discipline these employees for misconduct involving alcohol or drug use.

Americans with Disabilities Act

Alcoholism can be a disability under the Americans with Disabilities Act (ADA). Under the ADA, the burden is on the employee to prove they have a current or past addiction to alcohol and their addiction “substantially limits one or more major life activities.”

Drug addiction can also qualify as a disability. To receive ADA protection, an employee must prove they previously had a drug addiction and they are currently in treatment, have completed treatment, or have recovered without treatment. The employee must also demonstrate their addiction limits a major life activity or they are regarded as a drug addict. The ADA also protects employees who are incorrectly assumed to be drug addicts from discrimination upon that assumption.

Major life activities include working and caring for oneself. If the ADA applies to an employee, their employer must provide, upon the employee’s request, a reasonable accommodation to help the employee perform their work. Allowing an employee to take leave to attend a rehabilitation program may be a reasonable accommodation. However, drinking on the job is not. And these addictions do not excuse an inability to perform the essential functions of the job. Both alcoholics and employees with drug addictions must be able to perform the essential functions of their position with or without a reasonable accommodation.

New York State Human Rights Law

Drug addiction and alcoholism are also disabilities under the NYS Human Rights Law. The law is similar to the ADA in that recovering and recovered alcoholics and drug users receive protection.  However, the Human Rights Law does not require that drug addiction or alcoholism “substantially limits a major life activity.” Like the ADA, employees qualifying as disabled under the Human Rights Law based on drug addiction or alcoholism may seek reasonable accommodations from their employers.

When an Employer Can Discipline

Under New York law, employers cannot discipline for employees’ legal use of consumable products (such as tobacco or alcohol) outside of work hours when the employee is not in the workplace and not using the employer’s equipment. Yet, employers can discipline employees when they arrive at work under the influence or use drugs or alcohol while working.

The ADA distinguishes between addictions and the conduct resulting from these addictions. Although an employer cannot discipline an employee for the status of being an addict, an employer can discipline for behavior arising from addiction. If an employer disciplines an employee for a result of their addiction, such as arriving late to work, the employer must discipline the employee at the same level as they would discipline other employees for the same offense.

Both the Equal Employment Opportunity Commission (EEOC) and the New York State Division of Human Rights allow that employers may discipline employees for current illegal drug use, even while off duty. Although the term “current user” is not well defined, the EEOC defines it to mean that the employee used illegal drugs “recently enough” for an employer to reasonably believe that the drug use is an ongoing issue. Employers may drug test employees to determine recent use.

Although not required, the EEOC encourages employers to enter into “last chance” agreements with an employee whose addiction has deteriorated their job performance. Under these agreements, the employer might allow the employee to take leave for a rehabilitation program upon condition that the employee has an acceptable performance level and attendance rate upon their return. If the employee fails to meet their end of the agreement or refuses to sign the contract, the employer may terminate their employment.

Addressing Employee Drug Addiction and Alcoholism

As a general rule, employers should not ask employees about their past drug or alcohol use. Exceptions may apply if drug addiction or alcoholism create problems at work. However, employers must remember that drug addiction and alcoholism themselves are disabilities and may afford the employees some protections.

Current use of illegal drugs typically constitutes a valid basis for discipline. However, alcohol consumption, especially outside of work, is harder to regulate. But when alcoholism affects an employee’s attendance, productivity, or behavior at work, employers may take appropriate action.

EEOC Task Force Sexual Harassment

EEOC Task Force Addresses Sexual Harassment  

In the midst of the #MeToo and #TimesUp movements, the U.S. Equal Employment Opportunity Commission (EEOC) announced in a June 14, 2018 press release that it had recently filed several harassment lawsuits against employers throughout the county. The EEOC stated these lawsuits “should reinforce to employers that harassment – on all bases – is a violation of federal law”. The seven lawsuits referenced in the press release were all filed within two days of a meeting of an EEOC task force on harassment in the workplace.  The meeting, entitled “Transforming #MeToo into Harassment-Free Workplaces: A Reconvening of the EEOC’s Select Task Force on the Study of Harassment in the Workplace,” took place on June 11, 2018.

Sexual Harassment Litigation

The EEOC lawsuits include allegations against a marine dealership for racial and sexual harassment from supervisors toward the welders they supervised. The EEOC also sued a trucking company for allowing an independent contractor trucker to sexually harass and threaten a female employee while they drove together. The majority of the lawsuits involve offensive sexual comments, unwelcome touching, and derogatory racial terms.  The overall trends of these lawsuits include actions of supervisors toward employees and how the sexual harassment tends to occur in isolated areas of the workplace. The cases emphasize the failure of employers to prevent or address this inappropriate conduct and the allowance of retaliation against those who report this conduct.

The EEOC regularly sues employers for violations of federal employment discrimination laws. However, the agency’s group announcement of the cases in connection with the meeting of the harassment task force is notable. This action should remind employers that the federal government can prosecute businesses who allow harassment to occur in their workplaces. Employees may separately sue their employers under the same and other laws.

EEOC Task Force on Study of Harassment in the Workplace

EEOC Commissioners Chai R. Feldblum and Victoria A. Lipnic chair this task force. It also consists of academics, attorneys, employer and employee advocacy groups, and unions. The task force reconvened on June 11, 2018, with a focus on sexual harassment.

The EEOC task force encourages employers to avoid becoming a defendant in an EEOC (or employee) lawsuit. In June 2016, the EEOC task force reported on the causes, effects, and methods of preventing harassment in the workplace. The report detailed seven main findings:

  1. Workplace harassment continues to be a problem. In 2015, about one-third of EEOC charges involved a form of workplace harassment.
  2. Workplace harassment is consistently unreported. Victims of harassment often don’t report because of fear of retaliation or inaction in response to their complaints.
  3. There is a compelling business case for addressing harassment and preventing further harassment. This includes direct costs, such as legal fees, along with its damaging effect on all workers, which results in lower productivity, higher turnover, and reputational harm.
  4. Leadership and accountability are necessary. Workplace culture has a significant effect on the existence of harassment. Leadership must communicate its commitment toward addressing and preventing harassment.
  5. Workplace training needs to change. Training is most effective when it is tailored to a specific workplace and includes relevant examples of unacceptable behavior.
  6. New approaches to training must be explored. Studies on bystander intervention training and workplace civility training have shown promising results.
  7. Harassment in the workplace won’t stop on its own- it’s on us. Harassment will only stop once everyone at the workplace has a shared sense of responsibility for stopping and preventing harassment.

EEOC Sexual Harassment Statistics

The June 11 meeting highlights the EEOC’s focus on addressing sexual harassment. Although it is just one form of unlawful workplace harassment, sexual harassment has served as an impetus for awareness over the past year. In 2017, the EEOC received 6,696 charges concerning sexual harassment. From these, the EEOC obtained $46.3 million on behalf of employees sexually harassed at work. To avoid joining these statistics, employers must implement effective anti-harassment policies and complaint procedures after analyzing the risk factors of their specific workplace. Then they must take all allegations of harassment seriously. This includes conducting a prompt investigation, taking appropriate remedial action, and preventing retaliation.