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New York Law Explicitly Prohibits Discrimination Based on Gender Identity or Expression

January 25, 2019

New York Governor Andrew Cuomo signed into law the Gender Expression Non-Discrimination Act, which amends the New York State Human Rights Law to explicitly include gender identity or expression, including transgender status, as a protected class on the basis of which employers cannot discriminate. The law will take effect February 24, 2019. Employers with four or more employees in New York State should ensure their existing policies prohibiting workplace discrimination, harassment, and retaliation are up to date.

The Gender Expression Non-Discrimination Act (GENDA), signed into New York law on January 25, was first introduced in 2003 and repeatedly passed the New York State Assembly, but was not brought to a floor vote in the New York State Senate until this year. Of particular relevance to employers, GENDA amends the New York State Human Rights Law (NYSHRL) to prohibit discrimination in employment on the basis of “gender identity or expression” wherever and to the full extent the NYSHRL offers protections on the basis of any protected class. GENDA defines “gender identity or expression” as “a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-based characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.” Separately, GENDA prohibits discrimination on the basis of gender identity or expression in other areas such as housing and education, and allows criminal offenses committed on the basis of gender identity or expression to be treated as hate crimes.

While the New York State Division of Human Rights previously promulgated regulations stating that gender identity discrimination constitutes unlawful sex discrimination under the NYSHRL, GENDA explicitly and unambiguously protects employees from discrimination in employment on the basis of their actual or perceived gender-related identity, including but not limited to transgender status. Employers with four or more employees in New York State are encouraged to ensure that existing policies prohibiting workplace discrimination, harassment, and retaliation explicitly prohibit discrimination on the basis of gender identity or expression and transgender status. Furthermore, employers should include examples of discrimination on the basis of gender identity or expression and transgender status in future workplace discrimination and harassment trainings.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

New York
Leni D. Battaglia
Melissa D. Hill
Brendan T. Killeen
Melissa C. Rodriguez
Douglas T. Schwarz
Kimberley E. Lunetta