Tag: gender identity

June 29, 2023

New York’s Updated Model Sexual Harassment Policy

On April 11, 2023, New York State implemented an updated model sexual harassment policy. The new policy includes several meaningful substantive additions. But a key employer concern remains unanswered. Are they required to change their policies to conform to the new model?

Sexual Harassment Policy Requirement

Since October 9, 2018, New York has required all employers in the state to maintain a written sexual harassment policy. They must also provide annual sexual harassment training to all employees.

Section 201-g of the New York Labor Law directed the Department of Labor (DOL) to consult with the Division of Human Rights (DHR) to develop a model sexual harassment prevention policy. However, the law does not specifically require employers to adopt the model policy. As an alternative, they may “establish a sexual harassment prevention policy to prevent sexual harassment that equals or exceeds the minimum standards provided by such model sexual harassment prevention policy.”

Based on the law and pre-existing guidance from the DOL, an employer’s policy must at least:

Prohibit sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights.
Provide examples of prohibited conduct that would constitute unlawful sexual harassment.
Include information concerning the federal and state statutory provisions concerning sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws.
Include a complaint form.
Include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties.
Inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially.
Clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue.
Clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful.

NYS Sexual Harassment Law Has Changed

The New York Human Rights Law was amended in 2019 to change the legal standard of workplace harassment. Among the changes, employees no longer need to prove that unwelcome conduct was “severe or pervasive.” That standard remains operative under the federal employment discrimination laws. But now, under the NYS law, to avoid liability employers must show that “the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.”

Updated Model Policy

The law requires the DOL and DHR to review their model policy every four years. The first review took place in 2022, resulting in the updated model sexual harassment policy released in early 2023.

Not surprisingly, the new policy aims to advise employees on a broadened scope of what the DOL and DHR view as unlawful sexual harassment. However, new additions to the model policy are not limited to those arising from intervening statutory changes.

And the DOL hasn’t clarified the extent to which employers must update their existing policies, if at all. The specific minimum guidelines listed above haven’t changed. But there’s room for interpretation regarding the requirement to “Prohibit sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights.”

Header text on the State’s updated model sexual harassment states, “Employers are encouraged to tailor this policy to their individual needs, though as a minimum standard, no section in this policy should be omitted.”

The updated model policy is available for download from NYS here.

Description of Sexual Harassment

Consistent with the new statutory standard for proving harassment, the updated model sexual harassment policy includes the following;

Harassment does not need to be severe or pervasive to be illegal. It can be any harassing behavior that rises above petty slights or trivial inconveniences. Every instance of harassment is unique to those experiencing it, and there is no single boundary between petty slights and harassing behavior. However, the Human Rights Law specifies that whether harassing conduct is considered petty or trivial is to be viewed from the standpoint of a reasonable victim of discrimination with the same protected characteristics.

This additional wording is obviously based on the 2019 statutory amendment. Nonetheless, it is worth noting that the original New York model sexual harassment policy didn’t mention the “severe or pervasive” standard even when that was the prevailing law.

Gender Issues

The 2019 Gender Expression Non-Discrimination Act (GENDA) added “gender identity or expression” as statutorily-protected characteristics under the New York Human Rights Law. Before GENDA, the DHR had already interpreted the statutory category “sex” to include gender-related characteristics. Accordingly, the original model sexual harassment policy identified sexual harassment as including harassment based on “self-identified or perceived sex, gender expression, gender identity and the status of being transgender.”

The new model policy significantly expands its focus in this area, including the following passage:

Understanding gender diversity is essential to recognizing sexual harassment because discrimination based on sex stereotypes, gender expression and perceived identity are all forms of sexual harassment. The gender spectrum is nuanced, but the three most common ways people identify are cisgender, transgender, and non-binary. A cisgender person is someone whose gender aligns with the sex they were assigned at birth. Generally, this gender will align with the binary of male or female. A transgender person is someone whose gender is different than the sex they were assigned at birth. A non-binary person does not identify exclusively as a man or a woman. They might identify as both, somewhere in between, or completely outside the gender binary. Some may identify as transgender, but not all do. Respecting an individual’s gender identity is a necessary first step in establishing a safe workplace.

Bystander Intervention

The updated model sexual harassment policy includes a new section entitled “Bystander Intervention.” In addition to restating the pre-existing requirement that supervisors and managers must report sexual harassment, the policy now encourages “any employee witnessing harassment as a bystander” to report it.

The policy lists “five standard methods of bystander intervention”:

A bystander can interrupt the harassment by engaging with the individual being harassed and distracting them from the harassing behavior.
A bystander who feels unsafe interrupting on their own can ask a third party to help intervene in the harassment.
A bystander can record or take notes on the harassment incident to benefit a future investigation.
A bystander might check in with the person who has been harassed after the incident, see how they are feeling and let them know the behavior was not ok.
If a bystander feels safe, they can confront the harassers and name the behavior as inappropriate. When confronting harassment, physically assaulting an individual is never an appropriate response.

Remote Employees

The new policy also specifically adresses the proliferation of remote work stemming from the COVID-19 pandemic:

Sexual harassment can occur when employees are working remotely from home as well. Any behaviors outlined above that leave an employee feeling uncomfortable, humiliated, or unable to meet their job requirements constitute harassment even if the employee or covered individual is at home when the harassment occurs. Harassment can happen on virtual meeting platforms, in messaging apps, and after working hours between personal cell phones.

Legal Protections

New York sexual harassment policies must include information about reporting alleged sexual harassment to government agencies, including the DHR and the U.S. Equal Employment Opportunity Commission. The new model policy includes several updates to these sections. For example, it now references a hotline introduced in 2022 that employees can call to speak with a volunteer attorney experienced in sexual harassment matters for “limited free assistance and counsel over the phone.”

Sexual Harassment Prevention Training

In addition to the new model policy, the State has also updated its model sexual harassment prevention training materials.

Like the model policy, the State’s training materials are not mandatory. But employers must provide annual training that meets certain minimum standards, which have not changed.

What Should New York Employers Do Now?

At a minimum, you should ensure that your organization has reviewed the new model sexual harassment policy (and training materials). There are some items that employers generally should update, such as the statute of limitations for filing sexual harassment claims with the DHR (which has increased from one to three years since the original model policy was issued). Other topics, including the elaboration of legal standards and gender identity principles, raise more complicated compliance questions. It is not clear whether you must adopt the new wording in these areas, since employers have some discretion in drafting their sexual harassment prevention policies. Thus, your company’s approach should be evaluated on a case-by-case basis, with consideration of whether you have previously adopted the model policy in its entirety or prepared your own alternative designed to satisfy at least the minimum standards.

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June 30, 2020

U.S. Supreme Court Prohibits Sexual Orientation & Gender Discrimination Nationwide

On June 15, 2020, the U.S. Supreme Court issued a landmark decision extending employment discrimination protections to LGBTQ employees across the country. Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Unlike some state employment discrimination statutes, Title VII does not expressly address sexual orientation or gender discrimination. Before this ruling, federal courts had disagreed whether Title VII’s prohibition of discrimination based on “sex” extended into those areas. The Supreme Court’s decision conclusively answers that question in the affirmative.

Case Background

The Supreme Court’s opinion came out of three separate cases involving employers who fired their employees allegedly for identifying as gay or transgender. The employees sued their employers for sex discrimination under Title VII.

In Bostock v. Clayton County, the Supreme Court ruled that Title VII protects gay and transgender workers from workplace discrimination. Justice Neil Gorsuch wrote the 6-3 majority’s opinion holding: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex . . . [b]ecause discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex. An employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII”. In other words, this decision generally prohibits employers from disciplining, firing, failing or refusing to hire, or otherwise discriminating against an employee (or a prospective employee) because of their sexual orientation or gender identity.

Majority Rationale

The Supreme Court focused on the meanings of the terms used in Title VII at the time of its enactment. The majority considered the ordinary public meaning of “sex,” finding that the term refers to the biological distinction between males and females. After establishing the applicable definition of “sex,” the Court applied the “but for” causation standard to establish if the defendant employers had violated Title VII. This standard asks whether a particular outcome would not have happened ‘but for’ the alleged discriminatory basis. In this case, the employers would not have fired the plaintiffs, “but for” the employees’ sexual orientation or transgender status. The Court held that as long as the plaintiff’s sex was the “but for” cause of the termination, it was enough to trigger Title VII liability.

Dissenting Views

The three dissenting justices relied on strict constructionist views of the definition of “sex”. Specifically, they focused on what they felt the average person would have viewed the term to mean when Congress enacted Title VII in 1964. According to Justice Alito, at that time, “[d]iscrimination ‘because of sex’ was not understood as having anything to do with discrimination because of sexual orientation or transgender status.”

Justice Kavanaugh reasoned that the Court should rely on the “ordinary meaning” rather than the “literal meaning” of “sex”. He then concluded that “discrimination because of sex” does not encompass “gender identity” or “sexual orientation” discrimination.

New York Impact

The Supreme Court ruling will not have much practical impact on employees and employers in New York. In 2016, the New York State Division of Human Rights issued regulations interpreting the protected category “sex” to include discrimination on the basis of gender identity and the status of being transgender. The regulations 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”. Then, in 2019 the New York Human Rights Law was amended to include “gender or identity or expression” among the statutory characteristics protected from employment discrimination.

The New York State Human Rights Law had already prohibited discrimination based on sexual orientation since 2003.

For more, read New York GENDA Amends Human Rights Law.

Religious Institutions

The Supreme Court discussed concerns about Title VII carveouts for religious institutions. The First Amendment bars applying employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers”. The Court decided not to decide this issue and left the question for future cases. The decision also does not specifically resolve issues like sex-segregated bathrooms and locker rooms.

Update Your Policies

Employers subject to Title VII (most with at least 15 employees) now clearly may not take adverse employment action against an employee or a prospective employee based on their homosexuality or transgender status. If an employer discriminates based on employee’s “sex” status, including sexual orientation or transgender status, they may be liable for monetary damages. This can include lost wages, compensatory damages, attorneys’ fees, and punitive damages. Especially if your business was not already subject to state laws prohibiting these forms of discrimination, you should promptly review and update policies and training materials.

January 29, 2019

New York GENDA Amends Human Rights Law

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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