Tag: transgender

Gender Discrimination

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.

New York GENDA

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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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.

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