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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