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In recent years, the New York City Council has enacted two important amendments to the New York City Human Rights Law (Human Rights Law) that significantly expand the sphere of protection from employment discrimination for New York City workers. As of April 2002, the Human Rights Law expressly prohibited discrimination in employment on the basis of “perceived” gender as well as manifestations of gender either consistent or inconsistent with that associated with an employee’s legal sex assigned at birth. The council enacted this broadened definition of “gender” primarily to protect transgendered individuals from employment discrimination. [FOOTNOTE 1]In addition, as of January 2001, the Human Rights Law prohibits discrimination on the basis of an employee’s status as a victim of domestic violence. Because these amendments offer more protection to employees than is provided by state or federal law, both amendments may raise significant questions for employers. Specifically, New York City employers may wish to review their existing employment policies for possible revision as well as take these new amendments into account in connection with the administration of disciplinary actions in the work place. BACKGROUND The Human Rights Law prohibits employment discrimination based on “actual or perceived age, race, creed, color, national origin, gender, disability, marital status, sexual orientation or alienage or citizenship status.” [FOOTNOTE 2]Employees in New York City also enjoy protection from employment discrimination under state law (i.e., New York State Human Rights Law) and various federal statutes (i.e., Title VII, Americans with Disabilities Act, Age Discrimination in Employment Act). The New York State Human Rights Law prohibits discrimination in employment in the state of New York on the basis of “age, race, creed, color, national origin, sex, disability, genetic predisposition or carrier status, or marital status.” [FOOTNOTE 3]In addition, federal statutes prohibit discrimination in employment “because of [an employee's] race, color, religion, sex, or national origin,” [FOOTNOTE 4]age [FOOTNOTE 5]and disability. [FOOTNOTE 6] Section 8-102(23) of the Administrative Code, approved in April, elaborates on the definition of “gender” to bar discrimination by employers based on “actual or perceived” gender as well as “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.” Section 8-107.1 of the Administrative Code, entitled “Victims of Domestic Violence” and approved in January 2001, bars employment discrimination against employees based on “actual or perceived” status as victims of domestic violence. “Victims of Domestic Violence” – �8-107.1 of Administrative Code. EXPANDED DEFINITION OF ‘GENDER’ Prior to the amendment to �8-102 of the administrative code, the Human Rights Law did not have a specific definition of “gender.” Pursuant to the amendment, persons who qualify under the expanded definition of “gender” may file gender and/or disability claims under the Human Rights Law. The amendment’s legislative findings and intent statement provide some insight into the expanded gender definition. The city council’s findings and intent statement asserts that the scope of gender-based discrimination, as prohibited by the Human Rights Law, “require[d] clarification.” The findings and intent statement maintains that “gender-based discrimination affects a broad range of individuals” and is “especially debilitating for those whose gender self-image and presentation do not fully accord with the legal sex assigned to them at birth.” According to the findings and intent statement, these individuals face being treated as “pariah[s]” and face discrimination that includes “ loss of a job, loss of an apartment, and the refusal of service in public accommodations such as restaurants or stores.” To the extent that the gender definition includes individuals who are “transsexual,” the amendment may be viewed as a codification of two trial court opinions rendered prior to the Human Rights Law amendment. These two cases held that transsexual employees could state a claim for gender discrimination under the Human Rights Law. In Maffei v. Kolaeton Industry, Inc., 164 Misc.2d 547, 626 N.Y.S.2d 391 (N.Y. Sup. Ct. 1995), the plaintiff employee underwent sex reassignment surgery to change his sex from female to male. The plaintiff alleged that after his operation, the defendant corporation president harassed plaintiff, resulting in a hostile work environment. Plaintiff alleged that the defendant “began to degrade and humiliate [plaintiff], . . . called him names, stripped him of his duties, ostracized him from the rest of the employees and in the presence of the office manager stated that the plaintiff was “immoral and what [plaintiff] did was amoral.” Defendant moved to dismiss the complaint on grounds, inter alia, that the Human Rights Law did not recognize transsexuals as a protected class. The New York Supreme Court, New York County, disagreed. The court asserted that the Human Rights Law was intended to “bar all forms of discrimination in the workplace and to be broadly applied,” as other anti-discrimination remedial statutes were to be interpreted liberally to achieve their intended purposes. Accordingly, reasoned the court, the creation of a “hostile work environment” through “derogatory comments” pertaining to an employee’s change in his or her sexual status would amount to discrimination as would comments based on the employee’s “secondary sexual characteristics.” For example, “an employer who continually made derogatory comments regarding an employee’s breasts could clearly be found to be in violation of the law’s provisions against sexual harassment.” Similarly, the Southern District of New York held in Rentos v. OCE-Office Systems, No. 95 CIV. 7908 LAP, 1996 WL 737215 (S.D.N.Y. Dec. 24, 1996), that the plaintiff, who identified herself as a “transgendered female” and who was in the process of altering her sex from male to female, was protected under the Human Rights Law and the New York State Human Rights Law. The plaintiff alleged that she was subjected to sexual harassment and sex discrimination in violation of both human rights laws, including a hostile work environment, negative and inaccurate performance evaluations, wrongful termination and denial of medical expenses associated with her sex reassignment. The defendant moved to strike the complaint for plaintiff’s failure to provide a more definite statement of her claim, including an identification of the protected class to which plaintiff allegedly belonged. The court, however, denied the defendant’s motion on grounds that the plaintiff had alleged membership in a class protected under both the New York State and City human rights laws. UNINTENDED CONSEQUENCES? While the Human Rights Law’s definition of gender is consistent with the protection afforded by the courts to transsexual individuals under the gender discrimination provision of the Human Rights Law, the gender definition amendment is phrased broadly enough to raise, perhaps unintended, issues of interpretation. For example, the Human Rights Law definition of gender now includes “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.” By including “appearance, behavior or expression” in the definition of gender, was the council suggesting that employers are prohibited from imposing dress codes that differ for men and women? Are employers prohibited from imposing grooming standards that differ for men and women? For example, may an employer seek to impose work rules intended to control employees’ hair length, facial hair, the wearing of jewelry and/or the usage of makeup? Alternatively, is discrimination on the basis of appearance, behavior or expression a matter as to which only transgendered individuals may claim protection? The gender definition amendment raises the question of whether sex-based workplace grooming and appearance policies (i.e., regarding hair length, jewelry and clothing), which have been upheld by federal courts as nondiscriminatory under Title VII, [FOOTNOTE 7]may now violate the Human Rights Law’s definition of gender discrimination. These and other questions certainly will be confronting the courts in the future. DOMESTIC VIOLENCE Section 8-107.1 of the Administrative Code now states:

It shall be an unlawful and discriminatory practice for an employer, or an agent thereof, to refuse to hire or employ or to bar or to discharge from employment, or to discriminate against an individual in compensation or other terms, conditions, or privileges of employment because of actual or perceived status of said individual as a victim of domestic violence.

“Victim of domestic violence” is defined in the same section as follows: 

“Victim of domestic violence” shall mean a person who has been subjected to acts or threats of violence, not including acts of self-defense, committed by a current or former spouse of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim, by a person who is or has been in a continuing social relationship of a romantic or intimate nature with the victim, or a person who is or has continually or at regular intervals lived in the same household as the victim.

The legislative findings accompanying the amendment indicate that the New York City Council, in enacting the Human Rights Law amendment, contemplated the effect of domestic violence on the work lives of domestic violence victims as well as on the city’s economy as a whole. The legislative findings point to the impact of domestic violence on victims’ abilities to maintain and establish financial independence. For example, the findings refer to evidence suggesting that employees who have revealed that they are domestic violence victims have faced negative employment actions such as demotion, suspension, loss of pay and/or benefits or termination. Specifically, the findings state that evidence shows that “victims of domestic violence have been terminated or demoted after requesting simple protective measures such as time off or flexible hours to confer with an attorney or a domestic violence counselor, obtain an order of protection or obtain medical or other services for themselves or family members.” In addition, the city council’s findings refer to the negative effect of domestic violence on New York City’s employers through absenteeism and decreased workplace productivity. The “Victims of Domestic Violence” amendment exceeded statutory protection in place for victims of domestic violence at the state and city level. The state of New York had previously enacted legislation establishing an executive office to develop model domestic violence policies for counties, state agencies and private employers. [FOOTNOTE 8]In addition, to the extent that a victim of domestic violence was physically and/or psychologically traumatized by domestic violence, she or he may have been able to state a cause of action under the disability provisions of the Human Rights Law, ��8-102(16) and 8-107 of the administrative code. However, the Victims of Domestic Violence amendment offers statutory protection for domestic violence victims regardless of whether such individuals would qualify as “disabled.” CASE LAW In contrast to the relatively detailed legislative background information available, there is no reported case law concerning the scope of employment discrimination protection for actual or perceived domestic violence victims. In other contexts, however, domestic violence victims have alleged wrongful conduct by employers related to the plaintiffs’ domestic violence victim status. For example, in one Northern District of Ohio case, an employee alleged that her employer defamed her by informing the Ohio Civil Rights Commission that the plaintiff was a victim of domestic abuse after she filed discrimination charges against the employer. Howell v. Stark County Community Action Agency, 63 FSupp. 843, 845 (N.D. Ohio 1999). However, the court held that the employee had failed to establish a prima facie case of defamation. Similarly, in a District Court for the District of Columbia case, a female applicant who was unsuccessful in getting her business admitted into a Small Business Administration program designed for economically and socially disadvantaged small business concerns argued that she was disadvantaged and thus should have been accepted into the program, in part because she experienced gender bias in the business arena as a victim of domestic violence. Fagan v. United States Small Business Administration, 783 FSupp. 1455, 1463 (D. D.C. 1992). However, the court held that the plaintiff’s allegation that she experienced gender bias in the business arena as a victim of domestic violence failed to satisfy the Small Business Administration’s requirement for “social disadvantage.” PRACTICE POINTERS In light of the two amendments to the Human Rights Law described above, New York City employers may wish to review their employee handbooks to ensure that the language describing the employer’s antidiscrimination policy is fully inclusive. For example, language might indicate that the employer does not discriminate on the basis of any criterion prohibited under federal, New York State or New York City law. In addition, employers may wish to establish protocols to ensure that disciplinary actions and termination decisions are undertaken without regard to employees’ transgender status or employees’ status as victims of domestic violence. Employers also may wish to review their dress codes and grooming standards if any. While court pronouncements are legion in announcing that employers are free to implement different standards for men and women, employers may wish to take steps to ensure that transgendered individuals are not discriminated against in the enforcement or implementation of such policies. In addition, even as to employees who are not transgendered, employers may wish to proceed with caution and with the advice of counsel, prior to enforcing dress codes and grooming standards. With regard to the domestic violence victims amendment, employers might consider establishing for the first time domestic violence policies or procedures for handling accommodation requests from employees who are domestic violence victims. If employers implement any such procedures, they might consider putting in place policies to maintain the identity of domestic violence victim employees in confidence and give access to identifying information only to those who need to know the identities of employees who are victims of domestic violence. Protocols may ensure that discipline, terminations are done without regard to transgender status or status as victims of domestic violence. Jeffrey S. Klein is a partner and Nicholas J. Pappas is counsel to the firm at Weil, Gotshal & Manges, www.weil.com, where they practice labor and employment law. Suzanne A. Kim, an associate at the firm, assisted in the preparation of this article.

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