On January 25, 2019, New York Governor Andrew Cuomo signed an amendment to State law banning employment discrimination based on gender identity or expression. This action codifies employee protections that were arguably already in place through New York Division of Human Rights regulations. The New York State Assembly had passed the Gender Expression Non-Discrimination Act (GENDA) 10 times before, but this was the first time the legislation gained Senate approval.
What Is GENDA?
GENDA amends the New York State Human Rights Law to include protections for gender identity and expression. These protections are not limited to employment, but also apply in the areas of licensing, labor organizations, training programs, public accommodations, credit, housing, and commercial real estate transactions.
The legislation also amends other State statutes, including in the areas of education and criminal law.
GENDA defines “gender identity or expression” to mean “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.”
For most purposes, GENDA takes effect on February 24, 2019. The amendments to the penal law will apply beginning November 1, 2019.
What Does GENDA Mean for Employers?
The amendment to the Human Rights Law won’t necessarily change anything for employers. In 2016, the Division of Human Rights, at Governor Cuomo’s direction, had already issued regulations interpreting the protected category “sex” to include discrimination on the basis of gender identity. The recent amendment essentially codifies those regulatory interpretations into the statute.
The regulations defined “sex” to include “gender identity and the status of being transgender.”
They defined “gender identity” 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.”
Thus, there are slight differences between the 2016 regulatory definitions and the new statutory ones. However, it’s not clear that the intended scope of the protections differs materially.
Whether under the regulations or the new statutory terms, covered employers with employees in New York cannot discriminate based on gender identity. Employers should assume broad interpretation of that term. Prohibited discrimination includes failure to hire, discipline, discharge, and other adverse employment actions based on gender identity or expression. The law also prohibits workplace harassment on this basis.
Could GENDA Reduce Workers’ Rights?
By codifying gender identity as a characteristic different than sex, GENDA raises the interesting question of whether harassment based on gender identity constitutes “sexual harassment.” That question is potentially relevant in determining the scope of protection under the New York Human Rights Law.
In most respects, the New York Human Rights Law applies to employers with at least 4 employees. But the law prohibits all New York employers with as few as 1 employee from engaging in sexual harassment. Now that the terms “sex” and “gender identity” are codified separately, it might be that the law technically does not ban employers with fewer than 4 employees from gender identity harassment.
Similarly, 2018 amendments extended protection from sexual harassment to non-employees in the workplace. Did/does this expansion apply to gender identity?
Caution: These nuanced legal distinctions are not ones that employers should deliberately rely on as justification for harassment! If nothing else, it is unclear how the courts would rule on these nuances.
Impact on Sexual Harassment Prevention Requirements
Beyond pure technicalities, GENDA creates reasonable confusion regarding New York’s sexual harassment policy and training requirements. The Department of Labor’s guidance on these new obligations for all New York employers relies on Division of Human Rights guidance pre-dating GENDA. That earlier guidance makes express reference to “sexual harassment that occurs because the victim is transgender.”
Moreover, the State’s model sexual harassment policy provides that “Sexual harassment includes harassment on the basis of sex, sexual orientation, self-identified or perceived sex, gender expression, gender identity and the status of being transgender.”
As mentioned above, there might now be a new statutory basis for an argument that “sexual harassment” does not include harassment based on most of those characteristics. Then again, “sexual orientation” has long been separately identified in the Human Rights Law as a basis of protection from discrimination, suggesting that “sexual harassment” can include harassment based on statutory categories other than “sex.”
Overall, given the clear legislative intent to expand employee protections, employers should probably continue to assume an expansive reading of “sexual harassment” and broadly cover all of these areas that could be deemed to touch on “sex” or gender in some way.
Update Your Policies
Even if GENDA has not substantively changed employers’ obligations and employees’ rights, employers should at least update their non-discrimination and anti-harassment policies to include the new statutory terms. The 2016 regulations caused some employers to make similar changes, but others left the word “sex,” subject to whatever it meant under the law. Both approaches warrant revision at this time. The list of protected categories in New York should now specifically include “gender identity and expression.”
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