Mayor Bill de Blasio and the New York City Council have made no secret of their desire to expand the reach and protections offered by the New York City Human Rights Law (“NYCHRL”). This year saw the expansion of these protections, such as bans on using, or even inquiring about, individuals’ credit and criminal background information in many employment decisions. Given this flurry of recent added protections, one would expect there would be no new regulatory hurdles for employers ushered in as the year winds down. However, the New York City Commission on Human Rights (“the Commission”) decided to provide one last surprise, issuing new enforcement guidelines under the NYCHRL as we say goodbye to 2015. Entitled Legal Enforcement Guidance on Discrimination on the Basis of Gender Identity or Expression, these new guidelines set forth various forms of conduct by employers (as well as landlords and businesses in general) that the Commission finds to be discriminatory based upon gender, gender identity, and/or transgender status.
As most employers in New York City are aware, existing law prohibits employers from terminating, refusing to hire or promote, or setting different terms of employment because of an individual’s actual or perceived status as a transgender person. This new guidance, however, targets less obvious forms of harassment and discrimination based on gender, gender identity, and/or transgender status, which now also run afoul of the law, including: (i) refusing to use a transgender employee’s favored name, pronoun and/or prefix; (ii) prohibiting a transgender employee from using a single-sex bathroom or locker room, even if inconsistent with their biological sex; (iii) imposing uniform or grooming standards based on an employee’s biological sex or gender; and/or (iv) considering an employee’s actual or perceived transgender status in employee benefits or when evaluating a request for accommodation. For example, health benefits and leave must be extended on a non-discriminatory basis for transition-related care and/or gender-affirming care. For many employers, particularly in the restaurant and hospitality industries, the new limitations on uniform and grooming standards will come as a shock. Frequently uniform and grooming codes in the restaurant and hospitality industries will specify “neckties required for men” or “earrings allowed for women only,” which now appear to be verboten.
It is critically important for employers to review their employment policies immediately (or at least once the champagne has worn off tomorrow) to ensure compliance with the Commission’s new guidance. You definitely don’t want to risk the draconian penalties, i.e. up to $250,000 where such conduct is found willful, wanton and/or malicious. If you have any questions regarding the Commission’s new guidance, please reach out to an attorney in Fox Rothschild’s labor and employment department to assist you. With that, and most importantly, a happy and healthy New Year to you and your loved ones.