February 11, 2016
By Barry Saltzman
NYC Human Rights Commission Issues Policy Guidlines Fighting Gender Discrimination
The New York City Commission on Human Rights has released powerful guidelines to counter gender-identity discrimination by fleshing out the broad protections listed in the New York City Human Rights Law. Employers who violate the NYCHRL are subject to fines or civil penalties of up to $250,000, as well as damages including back and front pay, compensatory and punitive damages, and attorneys’ fees.
Under the guidelines, an employee has the right to be called a name of personal choice no matter what the official employee ID states. Thus, an employer cannot put “John” on a transgender employee’s ID if she prefers “Jane,” even if her official ID says “John.”
Employers also cannot deny transgender employees access to the restroom or locker room where their gender identity (one’s internal held sense of one’s gender) belongs, but employers should provide a “private space” within multi-gender facilities to avoid potential discrimination claims. All-gender single-occupancy restrooms are suggested but not required.
The guidelines likewise address topics including employee dress codes, uniforms, and the application of grooming or appearance standards that impose different requirements for individuals based on sex or gender. For example, employers cannot require female servers to wear skirts if their male colleagues can wear pants. An employer need not require one unisex uniform for both male and female employees, but an employer cannot require dresses or makeup for women only. Employers cannot enforce a policy that prohibits only men from having long hair or wearing jewelry or make-up at work. The guidelines encourage employers to draft gender-neutral dress codes and grooming standards.
Many of the guidelines’ requirements differ from federal law which permits some employer policies that impose standards for individuals based on sex or gender so long as they do not impose an undue burden on the employees. However, the federal Equal Employment Opportunity Commission (“EEOC”) has lately taken positions in-line with the NYCHRL, and several cases are now winding their way through the courts aimed to transform gender rights as we know them.
An estimated 25,000 transgender or gender non-conforming people live in the city, according to the Associated Press.
Barry Saltzman is a partner at the law firm of Pitta & Giblin specializing in labor law.