Human Rights Law - Horton Management 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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New York employers cannot have blanket policies against hiring employees with criminal records. Instead, they must carefully consider several factors before using an applicant’s criminal record to deny employment.

(Some cities in New York have passed “ban-the-box laws” that prohibit employers from asking about criminal convictions on job applications. Read more about that topic here.)

New York Corrections Law

The New York Corrections Law codifies the state’s public policy supporting employment of people with criminal records.

It provides that employers may not make negative employment decisions by reason of the individual’s having been previously convicted of one or more criminal offenses, or by reason of a finding of lack of ‘good moral character’ when such finding is based upon the fact that the individual has previously been convicted of one or more criminal offenses, unless:

(1) there is a direct relationship between one or more of the previous criminal offenses and the specific employment sought or held by the individual; or

(2) the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

Note that this law only applies to prior convictions. It does not apply to convictions occurring during employment with the employer in question.

The law identifies 8 factors that employers must consider in deciding whether a criminal conviction disqualifies an individual from employment in a particular position.

The factors are:

New York’s public policy encouraging the employment of persons previously convicted of one or more criminal offenses.
The specific duties and responsibilities necessarily related to the employment sought or held by the person.
The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more of the job’s duties or responsibilities.
The time elapsed since the criminal offense or offenses.
The age of the person at the time of the criminal offense or offenses.
The seriousness of the offense or offenses.
Any information produced by the person, or produced on his behalf, regarding his rehabilitation and good conduct.
The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public.

Notice to Applicant

If a job candidate with a criminal record asks an employer for a statement of the reasons they were denied employment, then the employer must provide one in writing within 30 days.

Employers who learn of criminal records through background checks must satisfy additional notice requirements.

New York Human Rights Law

An employee with a criminal record can claim discrimination on this basis under the New York State Human Rights Law. This law prohibits many forms of employment discrimination, including race, sex, age, and disability discrimination. But it also specifically references violation of the Corrections Law provisions above as violating the Human Rights Law.

As a result, applicants and employees can file claims of criminal record discrimination like other employment discrimination claims in New York. This means they can file a complaint with the New York State Division of Human Rights or directly with a court.

Criminal Records and Federal Employment Law

Federal employment law does not expressly protect employees with criminal records. However, in 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance cautioning employers.

The EEOC explained how employment decisions based on criminal records could result in discrimination based on another protected category. Specifically, because certain races and ethnic groups represent a disproportionate percentage of individuals with criminal records, denying employment based on convictions is arguably the same as denying it based on race, national origin, etc.

The EEOC expects employers to consider various factors before making employment decisions based on criminal records. These are similar to the New York Corrections Law factors listed above.

How To Stay Out of Trouble

These laws do not say that employers can’t use criminal records as part of their employment decisions. Rather, they mean that employers must evaluate each situation individually.

Employers should document their consideration of all of factors listed above any time they deny employment based on a prior criminal conviction. This documentation alone will improve your defense of a criminal record discrimination claim. Employers who can’t show they weighed the statutory factors may not be able to overcome that failure.

Remember that the overriding question is how closely related the convictions are to the jobs in question. Banks probably need not hire former bank robbers. But clothing stores probably can’t turn down applicants because of their misdemeanor public intoxication charges from college.

The facts of each case matter. If there is any doubt, then you should speak with an employment lawyer familiar with these situations before proceeding. If you didn’t, and now face a discrimination complaint, read this.

Tag: Human Rights Law

New York GENDA Amends Human Rights Law