[co-author: Amanda Frankel]
On December 21, 2015, the New York City Commission on Human Rights released new enforcement guidelines pertaining to its Transgender Rights Bill. The guidelines were issued two months after Governor Andrew Cuomo moved to add transgender New Yorkers to the list of protected classes in the state. Initially enacted in 2002, the Transgender Rights Bill expanded gender-based protections guaranteed under the New York City Human Rights Law (NYCHRL) and ensures protection for individuals whose “gender and self-image do not fully accord with the legal sex assigned to them at birth.” The NYCHRL defines gender discrimination as instances when an individual is treated less than others on the basis of gender and when harassment is motivated by gender.
The NYCHRL specifically prohibits gender discrimination in employment, public accommodation, housing discriminatory harassment, bias-based profiling by police and exists whenever there is disparate treatment of an individual on account of gender. Gender-based harassment can include unwanted sexual advances or requests for sexual favors; however, the harassment does not have to be sexual in nature. Refusal to use a transgender employee’s preferred name, pronoun (such as he, she, him, her, Mr. and Ms.) or title may constitute unlawful gender-based harassment. Comments, unwanted touching, gestures, jokes, or pictures that target an individual based on gender constitute gender-based harassment.
Under the NYCHRL, it is not only illegal for employers to refuse to hire or promote a transgender individual but it is also unlawful to fire or assign different work or benefits to employees on the basis of gender. The guidelines provide remedies to avoid violations, such as implementing internal policies to educate employees, tenants and program participants of their rights and obligations under the NYCHRL. In addition, the guidelines caution that a business will be in violation of the law if it chooses to enforce dress codes, uniforms or grooming standards either against employees or patrons, on the basis of sex-stereotyping. It is also recommended that employees should be regularly trained on these issues and should be provided with internal reporting measures without fear of adverse action.
With its new enforcement guidelines, the Commission can impose fines up to $250,000 for employers, business owners and landlords who commit willful or malicious violations. Civil penalties of up to $125,000 for violations can also be assessed. These penalties are in addition to the other remedies available to people who successfully resolve or prevail on claims under the NYCHRL, including, but not limited to, back and front pay, along with other compensatory and punitive damages. The Commission may consider the lack of an adequate anti-discrimination policy as a factor in determining liability, assessing damages, and mandating certain affirmative remedies.
