The guidance may help employers nationally comply with the trend toward protecting transgender individuals’ rights.
Despite their increasingly positive representation in US media and culture (e.g., Caitlyn Jenner and the characters in the TV show Transparent), people who identify as transgender report high incidences of workplace harassment and other adverse employment actions attributable to their gender identity. A recent survey by the National Center for Transgender Equality and the National Gay and Lesbian Task Force found that 75% of transgender or gender nonconforming New Yorkers reported harassment and mistreatment in the workplace because of their gender identity. At the same time, more than 78% of those who transition from one gender to another feel that their job performance improves after their transition.
People who identify as transgender or gender nonconforming are now expressly protected against workplace discrimination and harassment by laws in 19 states and the District of Columbia and more than 225 municipalities nationwide. Additionally, although the federal employment antidiscrimination law known as Title VII does not mention gender identity or transgender status, a number of federal courts have recently expanded Title VII’s gender protections to include people who are discriminated against for “failing to act in accordance and/or identify with their perceived sex or gender.” Other federal courts have provided more outright protection under Title VII for transgender individuals. For example, in the 2015 case Cooper v. Micros Systems, the US District Court for the District of Maryland noted that discrimination against transgender individuals is a cognizable claim of gender discrimination under Title VII.
Given this nationwide trend to protect transgender rights and the apparent high incidence of bias and harassment against transgender individuals, employers must understand how to navigate a number of common issues that involve transgender people in the workplace. New York City’s recently issued enforcement guidance provides a blueprint for employers to protect individuals’ rights with respect to gender identity and expression.
New York City law has prohibited discrimination based on gender identity and transgender status for more than a decade. On December 21, 2015, the New York City Commission on Human Rights (NYCCHR) issued legal enforcement guidance that elaborates on the intent and scope of this law. The new city guidance comes on the heels of an October 2015 executive action in which New York Governor Andrew Cuomo proposed statewide regulations to protect transgender individuals against discrimination.
The city guidance provides detailed examples of violations and employer best practices. Most notably, it provides (i) an explanation of legislative intent, (ii) definitions of protected classifications under the law, (iii) examples of violations of the law, and (iv) penalties in administrative actions (in addition to those remedies available to plaintiffs in private civil actions). Employers should consider updating their current policies and practices to comply with this new guidance—particularly those policies related to bathrooms, dress and grooming codes, employee benefit plans, and accommodations for transition-related medical conditions or treatment.
The NYCCHR guidance defines important terms in the law “to help people understand the . . . guidance as well as their rights and responsibilities under the [law].” The guidance defines commonly used terms such as “gender identity” and “sex,” as well as less commonly used terms such as “cisgender,” which means “a person whose self-identity conforms with the gender that corresponds to their biological sex.” “Cisgender” serves as an equal to transgender and is meant to eliminate the distinction between “transgender” and “normal.”
The guidance clarifies that discrimination occurs when individuals are treated “less well than others on account of their gender.” The new guidance lists several ways that employers could violate the law on the basis of gender identity and expression, including the following:
In addition to damages available to plaintiffs in private civil actions, the NYCCHR may impose civil penalties of up to $125,000 for violations and up to $250,000 for violations that are the result of willful, wanton, or malicious conduct. The penalty may be influenced by a number of factors, including the violation’s severity, previous or subsequent violations, an employer’s size, and an employer’s actual or constructive knowledge of the NYCHRL. The NYCCHR may consider the lack of an adequate antidiscrimination policy a factor in determining liability, assessing damages, and mandating certain affirmative remedies.
Employers should consider updating their current policies and practices to comply with this new guidance. Specifically, employers should consider doing the following:
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:
 Findings of the National Transgender Discrimination Survey: New York Results, National Center for Transgender Equality & National Gay and Lesbian Task Force (June 3, 2013), available at http://www.thetaskforce.org/downloads/reports/reports/ntds_state/ntds_state_ny.pdf.
 Jaime M. Grant, et al. Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, National Center for Transgender Equality and National Gay and Lesbian Task Force (2011), available at http://www.thetaskforce.org/static_html/downloads/reports/reports/ntds_full.pdf.
 Cities and Counties with Non-Discrimination Ordinances that Include Gender Identity, Human Rights Campaign, available at http://www.hrc.org/resources/cities-and-counties-with-non-discrimination-ordinances-that-include-gender.
 See E.E.O.C. v. R.G. & G.R. Harris Funeral Homes, Inc., 100 F. Supp. 3d 594, 599 (E.D. Mich. 2015). See also Smith v. City of Salem, 378 F.3d 566, 574-75 (6th Cir. 2004); Tronetti v. Healthnet Lakeshore Hosp., 2003 US Dist. LEXIS 23757 (W.D.N.Y. Sept. 26, 2003).
 No. CCB-14-1373, 2015 U.S. Dist. LEXIS 145390, at *8 n.6 (D. Md. Oct. 27, 2015) (citing Finkle v. Howard Cty., 12 F. Supp. 3d 780 (D. Md. 2014)).
 Local Law No. 3 (2002), available at http://www.nyc.gov/html/cchr/downloads/pdf/amendments/amend2002.pdf; N.Y.C. Admin. Code 8-102(23).
 This standard departs from federal law, which permits differing standards based on sex or gender as long as they do not impose an undue burden, as established by the plaintiff. Under the Restoration Act of 2005, the NYCHRL views this standard as a floor rather than a ceiling.
 Federal and New York law already require certain types of insurance to cover medically necessary transition-related care.