About 1.4 million Americans recognize themselves – surgically or otherwise – as a gender other than the one they were born into. In recent months, the Department of Justice (DOJ) has promoted the view that the federal employment anti-discrimination law, Title VII, does not ban employment discrimination against employees on the basis of gender identity. The DOJ’s viewpoint is in opposition to the Equal Employment Opportunity Commission’s interpretation of Title VII.[1] In October 2017, former Attorney General Jeff Sessions issued a memorandum advocating that Title VII does not cover gender identity per se, including transgender status.  More recently, in October 2018, the DOJ filed a brief with the U.S. Supreme Court in a pending transgender employment discrimination case espousing the same stance. Thus, at present, there is no federal law explicitly prohibiting employment discrimination against transgender employees.

Despite the ambiguity around federal legal protections for transgender employees, employers should still be conscientious of workplace policies that affect transgender rights. There are numerous state and city laws that protect transgender individuals from gender identity discrimination in the workplace. To date, 21 states and hundreds of municipalities have established laws that protect transgender individuals.  As a result, employers should not only be aware of such laws, but amend workplace policies to comply with the jurisdictions in which they operate. The following laws are applicable in New York:

New York Code of Rules and Regulations (NYCRR)  

New York State’s Division of Human Rights (DHR) enacted regulations in January 2016 prohibiting discrimination on the basis of gender identity, gender expression, and transgender status. Under NYCRR §466.13, treating someone differently because of their gender identity, gender expression, and transgender status is a form of sex discrimination, and is therefore prohibited. NYCRR §466.13(d)(4) also prohibits discrimination on the basis of gender dysphoria, defined as a psychological condition relating to an individual having a gender identity different from the sex assigned at birth, and classifies such discrimination as a form of disability discrimination. Further, an employer may not deny reasonable workplace accommodations to an employee experiencing gender dysphoria. Employees who experience employment discrimination or harassment on the basis of gender identity, gender expression, transgender status, or gender dysphoria may have a legal claim under New York State Human Rights Law (NYSHRL).

New York City Human Rights Law (NYCHRL)

The New York City Human Rights Law (NYCHRL) forbids employment discrimination on the basis of gender, gender identity, and gender expression. In 2016, the New York City Commission on Human Rights (NYCCHR) issued guidance on the intent and scope of this protection. Most notably, the NYCCHR guidance defines “gender” as one’s “actual or perceived sex and shall also include a person’s 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 legal sex assigned to that person at birth.” One’s gender identity can be male, female, both, or neither, i.e. one’s internal perception of gender. One’s gender expression is how their gender is represented through the individual’s choice of pronouns, clothing, haircut, behavior, voice, or body characteristics, i.e. the individual’s external portrayal of gender. NYCHRL makes it unlawful to refuse to hire, promote, or fire an individual because of a person’s actual or perceived gender, including actual or perceived status as a transgender person.  It is also unlawful to set different terms and conditions of employment because of an employee’s gender, such as through work assignments, employee benefits, and keeping the workplace free from harassment.

Workplace Policies

Pursuant to New York State and City laws, employers should take precautions in the workplace to protect the rights of transgender employees. Among such precautions, employers should consider:

  • Avoiding gender-specific dress codes – While federal law allows employers to adopt dress codes and grooming standards with gender-based differences, the NYCHRL prohibits such dress codes, uniforms, and grooming/appearance standards. New York employers may, for example, set professional dress codes requiring all employees to wear either slacks or skirts, but cannot require women to wear only skirts or men to wear only slacks;
  • Being conscientious of their employee’s preferred pronouns – NYCHRL requires employers to use preferred pronouns, e.g. him, her, their; and title, e.g. Mr., Mrs., Ms., regardless of the individual’s sex assigned at birth;
  • Using an employee’s preferred name – NYCHRL requires employers to use an employee’s preferred name, regardless of whether the employee has identification in that name or has obtained a court-ordered name change;
  • Letting transgender employees use the facilities of their choice – Employers are required to allow individuals to use single-sex facilities, such as restrooms and locker rooms, and participate in single-sex programs, consistent with the gender they identify with;
  • Creating internal procedures to evaluate accommodation requests in a non-discriminatory manner – As required by NYCRR, this consideration includes accommodations for medical appointments and recovery time, where such reasonable accommodations are provided to other employees;
  • Ensuring the workplace is free of harassment – Employers must be proactive about maintaining an inclusive environment where harassment of any kind, including on the basis of gender identity, is not tolerated.

Hogan Lovells’ employment attorneys have extensive experience crafting inclusive workplace policies, and are available to help employers take the necessary steps to comply with New York’s anti-discrimination requirements.

[1] In April 2012, the EEOC clarified that gender discrimination, specifically transgender discrimination, falls under Title VII of the Civil Rights Act’s protection against sex discrimination. In March 2018, the EEOC obtained a favorable ruling in a legal battle over a transgender employee’s firing; after the employee notified her employer she would be transitioning from a male to a female and would dress as a woman while at work. The 6th Circuit ruled in favor of the EEOC, holding that firing transgender employees for failing to conform to gender norms was illegal sex discrimination under the Supreme Court’s 1989 ruling in Price Waterhouse v. Hopkins. Further the 6th Circuit stated that Title VII protects transgender employees because their gender identity is inherently tied to their sex. The employer has recently appealed the ruling to the U.S. Supreme Court, and cert is pending.

On February 26, 2018, in a landmark decision continuing the expansion of Title VII’s protection, the Second Circuit Court of Appeals became the second federal appeals court to hold that Title VII prohibits discrimination on the basis of sexual orientation in the workplace. The decision in Zarda v. Altitude Express, Inc. aligns the Second Circuit with the Seventh Circuit in the ongoing evolution of Title VII and its application to sexual orientation discrimination. Both cases involved en banc decisions by the entire court.

Donald Zarda was a former skydiving instructor who alleged that he was fired due to his sexual orientation. He filed an EEOC charge claiming that his discharge was on account of his sexual orientation and gender in violation of Title VII, and repeated the claim in federal court, claiming that he was discharged because his behavior did not conform to gender stereotypes.  Zarda sometimes disclosed to his female clients that he was gay as he prepared them for tandem skydiving jumps during which he would be strapped in tightly to the client.  Although Zarda thought that approach would ease concerns about any inappropriate behavior, one of his clients and her boyfriend complained to his former employer.  The company fired Zarda shortly thereafter.

After acknowledging that the EEOC has maintained since 2015 that sexual orientation discrimination is protected by Title VII and the Seventh Circuit’s same conclusion, the Second Circuit held that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination,” overturning is own prior decisions. The Court’s decision focused on three main factors.  First, the Court concluded that sexual orientation discrimination is a function of sex, comparable to sexual harassment and other perceived evils previously recognized as violating Title VII.  Second, “sexual orientation discrimination is predicated on assumptions about how persons of a certain sex can or should be.”  The Court held that Title VII has long been interpreted (including by the Supreme Court) as prohibiting employment decisions based on stereotypes.  Sexual orientation discrimination, the Court found, is grounded in the concept of gender stereotypes—“real men should date women”—and the Court therefore ruled such discrimination as a subset of sex discrimination.  Finally, sexual orientation discrimination is a form of associational discrimination that is in violation of Title VII, similar to anti-miscegenation policies.  According to the Court, an employee’s sexual orientation is rooted in his or her association with someone of the same sex, which is itself discrimination based on the employee’s own sex.

It is unclear at this time whether Zarda will be appealed to the Supreme Court.  As courts’ interpretation of Title VII continues to evolve, employers in jurisdictions that recognize a cause of action for sexual orientation discrimination should stay vigilant about ensuring that their employees are not subjected to such discrimination in the workplace.  This is especially true on the federal level for employers in states covered by the Second Circuit (New York, Vermont, and Connecticut) and Seventh Circuit (Illinois, Indiana, and Wisconsin) decisions.  And employers in these and other states should remain mindful of state and local laws that provide similar protections.  We encourage employers to review their policies and practices to ensure that they comply with federal, state and local laws in this emerging area of workplace law.

For more information or for any other employment matter impacting your business, please contact the authors of this article or the attorney you regularly work with at Hogan Lovells.