December marked a continuation of the year-long trend toward expanding workplace rights for New York City employees under the New York City Human Rights Law (NYCHRL), as the New York City Council sought to add the new protected status of “caregiver” to the NYCHRL, and the New York City Commission on Human Rights issued new enforcement guidelines to protect transgender individuals.
On December 16, 2015, the New York City Council passed legislation amending the NYCHRL to include caregiver as a protected status. Once enacted, this amendment will make it unlawful for employers to discriminate against individuals because of their actual or perceived status as caregivers. The amendment defines “caregiver” as “a person who provides direct and ongoing care for a minor child or a care recipient.” “Care recipient” is broadly defined as “a person with a disability who: (i) is a covered relative, or a person who resides in the caregiver’s household; and (ii) relies on the caregiver for medical care or to meet the needs of daily living,” and can include children, spouses, domestic partners, siblings, parents, grandparents, and grandchildren as well as the children and parents of the caregiver’s spouse or domestic partner. This amendment to the NYCHRL is currently awaiting Mayor de Blasio’s signature, and will take effect 120 days after its enactment.
In addition, on December 21, 2015, the New York City Commission on Human Rights issued new enforcement guidelines, entitled the Legal Enforcement Guidance on Discrimination on the Basis of Gender Identity or Expression, which reaffirm that the city’s gender discrimination laws also prohibit discrimination against transgender individuals. Specifically, pursuant to the NYCHRL, gender discrimination includes discrimination based on “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.” The Enforcement Guidance makes clear that, among other things:
- employers cannot refuse to hire, promote, terminate, or set different terms of employment because of an individual’s actual or perceived status as a transgender person
- employers must use a transgender employee’s preferred name, pronoun and title
- employers must permit transgender employees to use single-sex facilities, such as bathrooms and changing rooms, consistent with their genders and regardless of their assigned sex at birth
- employers cannot impose different uniform or grooming standards based on employees’ sex or gender
- employers cannot provide employee benefits that discriminate based on gender, and health benefits plans must cover transgender care (aka transition-related care or gender-affirming care) and
- employers cannot consider employees’ actual or perceived status as transgender when evaluating requests for accommodations.
Steep penalties can be imposed against employers that violate the NYCHRL: up to $250,000 for violations resulting from willful, wanton or malicious conduct.
In the wake of this new legislation and other amendments to the NYCHRL, such as the Fair Chance Act, which prohibits most employers in New York City from inquiring into a job applicant’s criminal history until after a conditional offer of employment has been extended (see our November alert), the Stop Credit Discrimination in Employment Act, which significantly restricts the use of credit information for employment purposes (see our September alert), and the NYC Unemployment Discrimination Law, which makes it unlawful for employers to discriminate against applicants based upon their prior unemployment status, New York City employers would be well-advised to review and if necessary update their employment applications, offer letters, job postings and existing policies and procedures to ensure compliance.
For more information about these developments and recent amendments to the NYCHRL, contact any of these partners in DLA Piper's Employment group: Eric J. Wallach, Brian S. Kaplan, Joseph A. Piesco or Daniel Turinsky.