NY City Commission On Human Rights Adopts Rules On Gender Identity And Expression

Fox Rothschild LLP

Fox Rothschild LLP

The New York City Commission on Human Rights (the Commission) recently adopted new rules addressing discrimination based on gender identity or expression under the New York City Human Rights Law (NYCHRL). These new rules, which go into effect on March 9, 2019, address NYC employers’ obligations towards gender non-conforming employees. The rules have two primary purposes: (1) provide examples of behavior that the Commission will deem to be in violation of the NYCHRL; and (2) establish definitions for a number of gender-related terms. The Commission previously published enforcement guidance on discrimination based on gender identity in December 2015 as noted in our January 2016 alert.

NYC employers should become familiar with these new rules as they create new avenues of potential liability for employers of gender non-conforming employees.

Examples of Prohibited Gender-Based Behavior Under the NYCHRL

Deliberate Refusal to Use an Individual’s Self-Identified Name, Pronoun or Title

An employer’s deliberate refusal to use an employee’s self-identified name, pronoun, or title is a violation of the NYCHRL when that refusal is motivated by the individual’s gender, according to the Commission. Employers cannot refuse to use an employee’s self-identified name, pronoun, or gendered title, even if it may be inconsistent with that employee’s sex assigned at birth, sex indicated on an employee’s identification, anatomy, gender, or medical history. The only exception provided by the Commission is where federal, state, or local law may require otherwise, such as for purposes of employment eligibility verification with the federal government. Employers are allowed to ask someone in good faith what their name is or which pronoun they prefer without violating the NYCHRL.

The Commission has identified examples of behavior it believes violates the NYCHRL with respect to an employer’s use of an employee’s name, pronoun, or title, including the following:

  • An employer’s refusal to use an employee’s self-identified name in their email account;
  • Calling a transgender woman “Mr.” after she has informed the employer she uses female pronouns;
  • Using the pronoun “he” for a non-binary person who may be perceived as male but has said they identify as non-binary and use the pronouns “they,” “them,” and “theirs”;
  • Requiring an employee to obtain a court-ordered name change or provide identification that matches an employee’s self-identified name before allowing the employee to use their self-identified name at work; or
  • Requiring an employee to provide information about their medical history in order to use their self-identified name, pronoun, or title.

Denying Individuals' Use of Single-Gender Facilities or Participation in Single-Gender Programs Consistent with Their Gender Identity

Employers must allow individuals to use single-gendered facilities and participate in single-gendered programs that are consistent with an employee’s gender identity, including bathrooms and locker rooms. An employer cannot use the objections of others to sharing a single-gendered facility with a transgender, non-binary, or gender non-conforming person as a defense to this requirement. Employers also cannot require that an employee provide any proof of their gender before allowing them to use the single-gendered facility of their choosing nor can an employer require that a gender non-conforming employee use a unisex facility instead of a single-gendered one.

Imposing Different Dress or Grooming Standards Based on Gender

The Commission’s rules prohibit employers from imposing different dress or grooming standards on their employees based on their gender. Thus, employers cannot require different uniforms for men and women, but may provide different options that are typically associated with men and women so long as the employer does not require an employee to wear one style instead of the other. For example, and employer may not allow only female employees to wear makeup or jewelry or only allow male employees to wear ties. There is no exception to this rule for the preferences of an employer’s customers or clients. The only exception to this rule is for actors who may be required to wear gender-specific clothing if a role requires it.

Employers Must Provide Equal Employee Benefits Regardless of Gender

Employer benefit plans must offer benefits equally to all employees regardless of gender and may not provide health benefit plans that deny, limit, or exclude services based on gender. Benefit plans may not exclude coverage for transgender care, transition-related care, or gender-affirming care, such as hormone replacement therapy, psychological or psychiatric treatment, hormone suppressors, voice training, or surgery.

This prohibition extends to employer leave policies as well. Employers may not provide different amounts of parental leave to mothers than they do for fathers. Leave policies may differentiate the amount of leave given to new parents to allow for additional time for the physical recovery from childbirth, but employers may not otherwise premise differences in the amount of parental leave given based on a parent’s gender.

Gender May Not Be the Basis for Refusing a Request for Accommodation

Gender may not be used as a reason to deny an employee’s request for an accommodation or for other changes to the terms and conditions of employment, including additional medical or personal leave or schedule changes. The Commission requires that employers treat leave requests to address medical or health care needs related to gender identity the same as employers would treat requests for any other medical condition. Employers also must provide reasonable accommodations for employees undergoing a gender transition. This includes providing leave time for medical and counseling appointments, surgery, and for recover from gender-affirming procedures, surgeries, or treatments, as they would for any other medical condition. As an example, the Commission states that employers cannot refuse to provide a reasonable accommodation for a transgender woman undergoing medically necessary reconstructive breast surgery when it would provide an accommodation to a cisgender woman undergoing the same surgery.

New Gender-Related Definitions

The new rules provide definitions for a wide range of terms relating to gender and gender identity, including definitions for “gender” and “sex.” Employers should become familiar with these terms because, as discussed above, improper use of terms relating to gender and gender identity could run the risk of an employer violating the NYCHRL.

  • Gender: includes actual or perceived sex, gender identity, and gender expression including a person's actual or perceived gender-related self-image, appearance, behavior, expression, or other gender-related characteristic, regardless of the sex assigned to that person at birth.
  • Sex: a combination of several characteristics, including but not limited to, chromosomes, hormones, internal and external reproductive organs, facial hair, vocal pitch, development of breasts, and gender identity.
  • Cisgender: a term used to describe a person whose gender identity conforms with their sex assigned at birth.
  • Gender expression: the representation of gender as expressed through one's name, pronouns, clothing, hairstyle, behavior, voice, or similar characteristics. Gender expression may or may not conform to gender stereotypes, norms, and expectations in a given culture or historical period. Terms associated with gender expression include, but are not limited to, androgynous, butch, female/woman/feminine, femme, gender non-conforming, male/man/masculine, or non-binary.
  • Gender identity: the internal deeply-held sense of one's gender which may be the same as or different from one's sex assigned at birth. A person's gender identity may be male, female, neither or both, i.e., non-binary. Terms associated with gender identity include, but are not limited to, agender, bigender, female/woman/womxn/feminine, female to male (FTM), gender diverse, gender fluid, gender queer, male/man/masculine, male to female (MTF), man of trans experience, pangender, or woman of trans experience.
  • Gender non-conforming: a term used to describe a person whose gender expression differs from gender stereotypes, norms, and expectations in a given culture and historical period. Terms associated with gender non-conforming include, but are not limited to, androgynous, gender expansive, gender variant, or gender diverse.
  • Intersex: a term used to refer to a person whose sex characteristics (chromosomes, hormones, gonads, genitalia, etc.) do not conform with a binary construction of sex as either male or female.
  • Non-binary: a term used to describe a person whose gender identity is not exclusively male or female. For example, some people have a gender identity that blends elements of being a man or a woman or a gender identity that is neither male nor female.
  • Transgender: sometimes shortened to "trans,” is a term used to describe a person whose gender identity does not conform with the sex assigned at birth.

Next Steps for NYC Employers

Employers in NYC should take immediate steps to ensure that they are in compliance with these new rules. Among other things, employers should take the following actions as soon as possible:

  • Review all employee handbooks and personnel policies to ensure that they contain protections from discrimination based on an employee’s gender identity or expression.
  • Review all leave of absence and reasonable accommodation policies, including parental leave policies, to ensure that employees are not being given different benefits based on their gender. These policies should also be reviewed to ensure that gender non-conforming employees are not being given different benefits or have different requirements placed upon them than are given or placed upon cisgender employees.
  • Review any and all benefit plans, including medical benefit plans, to verify that they do not discriminate against employees based on their gender. In particular, employers must ensure that limitations are not placed on gender non-conforming employees covered by their plans and that the plans provide coverage for services related to gender transition.
  • Review all employment-related documents upon which an employee’s name appears and the policies and procedures that cover such documentation. Employees must be allowed to use their self-identified name, title, and pronoun in the workplace and be able to have that information changed at their request. This would include, but not be limited to:
    • Email addresses;
    • Business cards;
    • Company directories;
    • Job applications;
    • New hire documents;
    • Benefit applications;
    • Human resources or other personnel databases; and
    • Employer website.
  • Create procedures to update all records that may contain an employee’s name, title or pronoun to avoid running afoul of the rules by inadvertently failing to update certain documents when an employee informs you of a change to their gendered pronouns. Employers also must take care to ensure that employees are given the option of choosing more than just male or female pronouns or titles when completing applications or other forms to allow non-binary employees to indicate their preferences.
  • Train managers and human resources staff on gender identity issues. Managers and human resources personnel need to know what to do when an employee informs them of information relating to an employee’s gender identity, including requests to use an employee’s self-identified name, pronoun, or title.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Fox Rothschild LLP | Attorney Advertising

Written by:

Fox Rothschild LLP

Fox Rothschild LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.