New York Law Bans Discrimination Based on Gender Identity and Expression

New York employers should prepare to comply with a new law that prohibits discrimination on the basis of gender identity or expression. The Gender Expression Non-Discrimination Act (GENDA), which Gov. Andrew Cuomo signed on January 25, adds gender identity and gender expression to the list of protected classes under New York’s human rights and hate crimes laws.

GENDA will be effective in 30 days, except for certain amendments related to the hate crime laws, which become effective on November 1, 2019.

New York is among 21 other states and the District of Columbia in prohibiting workplace discrimination based on sexual orientation and gender identity, according the Human Rights Campaign, a civil rights organization.

Gender identity and gender expression can now be added to the list of protected classes under New York State’s human rights law, which makes it illegal for an employer to discriminate against an employee or job applicant because of age, creed, race, color, sex, sexual orientation, national origin, marital status, disability, military status, domestic violence victim status, criminal or arrest record, or predisposing genetic characteristics.

Traliant’s Preventing Discrimination and Harassment training suite raises awareness of  the various categories that are protected against workplace discrimination, including gender identity, gender expression and transgender status.

What is gender identity and gender expression?

“Gender identity” is a person’s internal sense of gender; what they perceive themselves and call themselves, which can be different from their sex assigned at birth. “Gender expression” is how a person outwardly expresses their gender.

GENDA defines gender identity or expression this way: “a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic, regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.”

Examples of LGBT-related discrimination claims
For a number of years, the EEOC has taken the position that Title VII’s prohibition of sex discrimination includes discrimination based on gender identity or sexual orientation. Some examples of LGBT-related claims that the EEOC views as unlawful sex discrimination include:

• Failing to hire an applicant because she is a transgender woman. 
• Firing an employee because he is planning or has made a gender transition. 
• Denying an employee equal access to a common restroom corresponding to the employee’s gender identity.
• Harassing an employee because of a gender transition, such as by intentionally and persistently failing to use the name of and gender pronoun that correspond to the gender identity with which the employee identifies, and which the employee has communicated to management and employees.
• Discriminating against or harassing an employee because of his or her sexual orientation or gender identity, in combination with another unlawful reason, for example, on the basis of transgender status and race, or sexual orientation and disability.

Traliant Insight
Employers doing business in New York should prepare to comply with the Gender Expression Non-Discrimination Act (GENDA), which prohibits discrimination on the basis of gender identity and expression. A good place to start is to review and update anti-discrimination and harassment policies, hiring practices and training to ensure employees know how to respond to situations involving gender identity, gender expression and transgender people, and understand their role in fostering a diverse, respectful and inclusive workplace culture.