NYC Human Rights Commission Takes Expansive View of Gender ID Discrimination

The New York City Commission on Human Rights (the Commission) is the law enforcement agency responsible for enforcing the New York City Human Rights Law (NYCHRL), which forbids discrimination in employment, public accommodations, and housing. On December 21, 2015, the Commission released official guidance on its interpretation of the application of the NYCHRL to discrimination on the basis of gender, particularly gender identity and gender expression.¹ The NYCHRL 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.”²

In the Guidance, the Commission distinguishes between gender identity and gender expression. Gender identity is defined as “one’s internal, deeply held sense of one’s gender, which may be the same or different from one’s sex assigned at birth.” One’s gender identity could be male, female, both or neither. Gender expression, on the other hand, is defined as how one’s gender is represented through the individual’s choice of pronouns, clothing, haircut, behavior, voice or body characteristics. While gender identity is an individual’s internal perception of gender, gender expression is the individual’s external portrayal of gender.

The Guidance provides specific examples of ways that covered entities may take actions that constitute impermissible discrimination on the basis of gender identity or gender expression. The Guidance applies to all employers and to other covered entities with respect to their operations in New York City.

Imposing Different Uniforms or Grooming Standards Based on Sex or Gender

Under federal law, employers and other covered entities may adopt dress code or grooming standards with gender-based differences, provided that the differing appearance standards do not impose an undue burden.³ For example, federal law permits employers to set professional dress code standards calling for men to wear slacks, sport jackets or suits and ties, and requiring women to wear skirts or dresses.

The NYCHRL, by contrast, prohibits gender-based distinctions in dress codes, uniforms, or grooming or appearance standards. The Commission emphasizes that any grooming standard or dress code that differentiates based on gender is considered discriminatory, even if harmless, because different standards do not serve any legitimate non-discriminatory purpose and reinforce a culture of sex stereotyping.

New York City employers are therefore prohibited from, for example, allowing only women to wear jewelry, requiring men to have short hair, or having different standards for men and women with respect to wearing makeup. Employers may still enforce dress codes or grooming standards, but they may not impose restrictions or requirements specific to gender or sex. Employers may provide different uniform options that are culturally typically male or female, but the employer cannot require any employee to wear one style over another. For example, an employer may require all employees to wear either slacks or skirts, but it cannot require women to wear only skirts.

Refusing to Respect an Individual’s Use of Preferred Names, Titles or Pronouns

The Commission has interpreted the NYCHRL to require employers to use an individual’s preferred name, pronoun, and title (e.g.,Mr., Ms., or Mrs.) regardless of the individual’s sex assigned at birth, gender, or appearance. The Commission notes that, while many individuals, including transgender people, use male or female pronouns and titles, some transgender and gender non-conforming people may prefer to use other pronouns, such as them/they/their or ze/hir. Further, some transgender and gender non-conforming people may choose to use a name different from their given birth name. The Guidance specifies that all people, including employees, customers, and tenants, have the right to use their preferred name, regardless of whether they have identification in that name or have obtained a court-ordered name change. The Commission notes a very limited exception in circumstances where federal, state, or local law requires otherwise (e.g., to verify employment eligibility with the federal government). Merely asking someone their preferred gender pronoun and name does not violate the NYCHRL.

It would thus be illegal for an employer to refer to a transgender employee as “he” or “Mr.” after she has made it clear that she uses “she” and “Ms.” It would also be illegal to call a woman “Mr.” if she uses female pronouns and titles, even though her appearance is more aligned with the traditional masculine stereotype.

Employers cannot condition an individual’s employment on the receipt of identification with that individual’s preferred name, nor can they require that an employee share the employee’s medical history to prove the individual underwent a sex reassignment procedure to use the individual’s preferred name, pronoun or title.

To avoid potential violations of the NYCHRL, the Commission suggests that employers implement a policy of asking every employee their preferred gender pronoun, so that no individual is singled out. Employers following this approach should not limit their employees’ gender options to male and female only.

Download: NYC Human Rights Commission Takes Expansive View of Gender ID Discrimination

*Andrew J. Lauria, a senior law clerk in Pillsbury’s New York City office, contributed to this alert.

1. N.Y.C. Comm’n on Human Rights, Legal Enforcement Guidance on the Discrimination on the Basis of Gender Identity or Expression: Local Law No. 3 (2002); N.Y.C. Admin. Code §8-102(23) (2015).
2. N.Y.C. Admin. Code § 8-102(23).
3. See, e.g., Jespersen v. Harrah’s Operating Co., 392 F.3d 1076 (9th Cir. 2004), aff’d on reh’g, 444 F.3d 1104 (9th Cir. 2006) (granting summary judgment for employer because employee failed to produce evidence that requiring female bartenders to wear makeup placed greater burden on women than men); Longo v. Carlisle DeCoppet & Co., 537 F.2d 685 (2d Cir. 1976) (holding that requiring men to have short hair and not women did not violate gender discrimination under Title VII).