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.

Effective December 31, 2018 the minimum wage will rise across New York. The new minimum wage will vary depending on the location and, in New York City, the size of the business. In order for exempt employees to remain exempt into the new year, employers will need to ensure that their annual salaries meet the new required minimum salary threshold.

Beginning December 31, 2018, the following minimum wages are in effect:

Hourly Employees:

Employers outside of Nassau, Suffolk and Westchester counties or NYC $11.10 per hour
Nassau, Suffolk and Westchester employers $12.00 per hour
New York City employers with 10 or fewer employees $13.50 per hour
New York City employers with 11 or more employees $15.00 per hour

Salaried Employees:

Employers outside of Nassau, Suffolk and Westchester counties or NYC

$832 per week

$43,264 annually

Nassau, Suffolk and Westchester employers

$900 per week

$46,800 annually

New York City employers with 10 or fewer employees

$1,012.50 per week

$42,650 annually

New York City employers with 11 or more employees

$1,125 per week

$58,500 annually

Because overtime exemption is analyzed on the basis of workweeks, rather than years, salary increases must conform to the new requirements by the first day of the workweek in which December 31, 2018 falls. Non-compliant employers risk losing the exemption for that workweek, and may be subject to penalties from local, state or federal authorities.  Employers may not count an employee’s nondiscretionary bonuses, incentive payments, or commissions towards their salary to reach the minimum.

Remember, under New York’s Wage Theft Prevention Act (“WTPA”), employers are required to give written notices to each new hire with the following information:

  • Rate or rates of pay, including overtime rate of pay if applicable;
  • How the employee is paid (hourly, per shift, daily, weekly, by commission, etc.);
  • Regular payday;
  • Official name of the employer and any other names used for business;
  • Address and phone number of the employer’s main office or principal location;
  • Allowances taken as part of the minimum wage (tip, meal, and lodging deductions); and
  • The notice must be in English and in the employee’s primary language if the Department of Labor offers a translation

If any of the above data changes, employers must give the employee a week’s notice, unless the employee’s new paystub carries the notice. However, employers must notify an employee in writing before reducing his or her wage rate.  Employers in the hospitality industry must give notice every time an employee’s wage rate changes.

 

Earlier this week, the New York Governor’s office finalized materials for New York State employers to implement sexual harassment policies and training.  While draft guidance was circulated to the public in August 2018, the finalized policies have some noticeable differences.  Of immediate interest is the extension that employers received to implement their first mandatory anti-harassment training from January 1, 2019 to October 9, 2019, giving employers who were scrambling to conduct a training 10 more months to do so.

Some other noteworthy differences include:

  • Modification of the definition of “sexual harassment” to prohibit harassment against individuals’ “self-identified or perceived sex, [or] gender expression”
  • Removal of language in the model policy language and the model training program that employers must have a “zero tolerance” policy toward harassment
  • Insertion of language that investigations should begin immediately and be kept “confidential to the extent possible”
  • Removal of language in the model training program that investigations should be concluded within 30 days, instead stating that the investigations should be completed “as soon as possible”

The State’s website contains a model sexual harassment policy, model training materials, a model complaint form, and frequently asked questions.

Employers do not have a duty to use the model policies and training, but must be sure that the training and policies are, at a minimum, compliant with the State’s materials.

Hogan Lovells’ employment attorneys have plenty of experience crafting policies and providing sexual harassment training in New York, and are available to help employers take the steps necessary to comply with New York’s new requirements.

 

Last month, the U.S. Department of Labor (DOL) Wage and Hour Division’s Payroll Audit Independent Determination (PAID) program went into effect. The pilot program allows employers to quickly pay back wages to workers in full for any accidental overtime or minimum wage violations of federal law under the Fair Labor Standards Act (FLSA). We previously wrote about what questions the PAID program left open (here), and, at least for now, the question of how this would affect New York state law has been closed shut.

Shortly after the federal PAID program went into effect, New York Attorney General Eric Schneiderman released a strong statement to employers in New York that his office would “continue to prosecute labor violations to the fullest extent of the law, regardless of whether employers choose to participate in the PAID program.” He reasoned that State investigations into wage and hour violations would continue because “the PAID program allows employers to avoid any consequences for committing wage theft.”

New York and Federal law not only require employers to pay employees any unpaid wages, but the laws establish additional liquidated damage penalties on top of any unpaid wages. Employers who enroll in the PAID program may avoid Federal FLSA liquidated damages, but AG Schneiderman’s statement ensures that this won’t be the case for New York state labor law violations and vowed to continue bringing lawsuits for wage and hour violations under New York state law. Guidance on the U.S. DOL’s Wage and Hour Division’s website doesn’t provide any help, either, stating that any releases signed by employees in exchange for payment would be “limited to the potential violations for which the employer had paid back wages.”  In other words, any release of claims under the Federal PAID program likely would not cover New York Labor Law claims, and the New York Attorney General Schneiderman has made it clear that his office would investigate “to the fullest extent of [state] law.”

New York employers are officially on notice. By opting in to the Federal PAID program, New York employers may inadvertently open the back door to a New York State wage/hour investigation. Before making the decision to self-report, any employer with employees in the state of New York is urged to seek legal advice.