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The New York State Division of Human Rights, the agency charged with enforcing the state's anti-discrimination laws, has adopted new regulations prohibiting employment discrimination on the basis of gender identity.  The regulations, which extend to the public and private sectors alike, state unequivocally that gender identity discrimination “is sex discrimination” and that harassment on the basis of gender identity “is sexual harassment.”  Gender identity, as defined by the regulations, includes actual or perceived gender identity, gender expression, and the status of being transgender.

The regulations are relatively silent, however, as to specific actions that employers must take to guarantee a safe and respectful workplace for transgender employees.  (Compare Washington State’s new regulations, which address in detail issues such as gender segregated facilities, and dress and grooming standards.)  While public comments on the regulations raised concerns about specificity at the time the regulations were proposed, the Division of Human Rights opted not to include additional guidance, responding that issues of whether conduct is discriminatory or whether reasonable accommodations are required are “fact-intensive” inquiries dependent upon the circumstances of a particular case.

Bloomberg BNA reached out to Christopher Gegwich and Tony Dulgerian of Nixon Peabody LLP’s Long Island office, to discuss what New York State employers can do to ensure their compliance with the new requirements.

Preventing Discrimination Against Transgender Employees

In the absence of further guidance from the Division, Gegwich says, “our general recommendation for employers is to focus on educating their workforce, supervisors and managers regarding the potential issues and concerns that may occur with a transgender employee and provide them with guidance and examples of how to respond to these concerns in a lawful, non-discriminatory and respectful manner.”

“Employers should make it a point of notifying transgender employees who they may contact—such as a supervisor or a human resources professional—regarding issues or concerns they may have in their workplaces and ensure that they may do so without any fear of reprisal.  The employer and transgender employee should collaborate to address concerns and work together to come to a mutually beneficial resolution of workplace issues toward a goal of providing the transgender employee with a respectful and non-discriminatory workplace.”

With regard to employers’ written anti-discrimination and anti-harassment policies, Gegwich states that, at the very least, employers should update their policies to include gender identity, gender expression, and transgender status as protected categories, and to make it clear that discrimination and harassment of that type will not be tolerated.  They also recommend that employers review and revise any dress code or grooming policies to remove gender-based distinctions, and that they consider the implementation of specific transgender policies to address issues such as what resources the employers make available to transitioning transgender employees.

Reasonably Accommodating Employees with Gender Dysphoria

The protections of the new regulations further extend to employees with gender dysphoria (a medical condition related to having a gender identity different than the sex assigned to one at birth), affirming that a failure to reasonably accommodate employees with gender dysphoria, when accommodations are requested and necessary, “is disability discrimination.”  What kinds of reasonable accommodations should employers be prepared to provide workers?

“One area where a reasonable accommodation may be necessary is an employee’s use of a bathroom at work, whether it be single sex, unisex or single occupancy,” says Gegwich.  “Failure of an employer to allow an employee to use a single sex bathroom or locker room consistent with that employee’s gender identity would most likely be viewed as discriminatory.  In addition, a transitioning transgender employee may want to use a single occupancy bathroom and the employer may have to provide such use as a reasonable accommodation barring any undue hardship.  Employers need to be careful, however, because requiring that a transgender employee use a single occupancy bathroom, as opposed to allowing the employee to use it by request, would also most likely be viewed as discriminatory.”

“Employees with gender dysphoria may also request their employers to address them with a name or pronoun that is different from the pronoun traditionally associated with their sex assigned at birth.  Again, unless this request would result in an undue hardship, employers may need to accommodate this request under the new regulations.”

Further Guidance from the City

Employers in need of further guidance should consider looking to New York City’s Human Rights Law, Dulgerian recommends.  The city, which has outlawed discrimination on the bases of gender identity and transgender status since 2002, recently issued guidance on the implementation of its law, providing specific examples of discriminatory behavior.  For example, Dulgerian notes, city employers “must refer to all transgender employees by their preferred pronoun, name and title, and cannot demand any documentation or proof to support the request.”  The city guidance also recommends that employers post signs to notify all employees that they are entitled to use single-sex facilities that correspond with their gender identity or expression. 

“Overall,” Dulgerian concludes “education and training are paramount, because the nuanced issues facing the transgender community may not be readily apparent to individuals whose gender identities are consistent with their birth sex, and an employer’s failure to be proactive and open-minded about these issues can result in potential liability.”

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