On February 24, 2019, New York state’s Gender Expression Non-Discrimination Act (“GENDA”) went into effect. GENDA prohibits all employers with four or more employees from discriminating against workers on the basis of their actual or perceived gender identity, gender expression, or their transgender status. Gender identity or expression is defined as having gender identity, self image, appearance, behavior or expression whether or not that gender identity, self image, appearance, behavior or expression is different from that traditionally associated with the sex assigned at birth. Additional protective amendments regarding hate crime laws will become effective on November 1, 2019.
Employers in New York should review their internal non-discrimination and harassment policies to ensure compliance. This may require employers to update their employee handbooks and their sexual harassment and non-discrimination training programs. Furthermore, employers should review and update their hiring materials (e.g., advertisements that may include non-discrimination language).
The prohibition of workplace discrimination and harassment based on sexual orientation and gender identity or expression is becoming more widespread. In fact, in Lusardi v. McHugh, the Equal Employment Opportunity Commission (EEOC) expressly concluded that intentionally referring to a transgender person by incorrect gender pronouns and prohibiting them from using the restroom consistent with their gender identity was discriminatory. Discrimination based on gender identity, change of sex, sex stereotyping, and transgender status, constitute sex discrimination under Title VII of the Civil Rights Act of 1964. As such, even if your state or locality does not protect individuals on the basis of transgender identity or expression to transgender status, you should prohibit workplace discrimination and harassment based on sexual orientation and gender identity or expression.
If you have any questions regarding the GENDA changes or other employment law related matters please do not hesitate to contact us.