Discrimination against non-binary employees in the workplace continues to be a serious problem in New York City. Those who identify as non-binary do not identify as being female or male, and often face harassment or discrimination. Non-binary discrimination includes employers or co-workers refusing to use a person’s preferred pronouns. Discrimination against non-binary employees can also result in employers treating them unfairly because of their gender expression. Employers have a legal duty to prohibit unlawful discrimination against non-binary employees. 

If you have experienced non-binary discrimination in the workplace, you may be entitled to compensation through an employment discrimination claim. At Lipsky Lowe LLP, our experienced lawyers have successfully advocated for many employees in employment discrimination matters. You will only have a limited amount of time to file an employment discrimination claim with New York’s Commission on Human Rights. Contact us today to schedule your initial consultation and get the process started. 

New York City Recently Expanded Protections for Transgender Employees

The New York City Commission on Human Rights (NYCCHR) recently changed the York City Human Rights Law to increase protection for non-binary, transgender, and gender non-conforming employees in New York City. Similarly, New York State recently enacted the Gender Expression Non-Discrimination Act (GENDA), which became law on February 25, 2019. Both of these laws broaden workplace protection for non-binary employees. 

The New York City Commission on Human Rights adopted rules that changed the definition of key terms, giving gender non-conforming employees greater protection under the law. These new rules also prohibit employers from imposing gender-based grooming or dress standards. In other words, an employer cannot require male employees to wear one type of uniform and female employees to wear another type of uniform. 

Which Types of Gender Expressions Are Protected Under New York City Law?

New York City has prohibited workplace discrimination based on gender identity or expression for a long time. However, updates to the rule add prohibitions against discrimination based on an employee’s “actual or perceived” gender or “other gender-related characteristics.” The new rules also define gender-related terms and identities, defining non-binary as “a person whose gender identity is not exclusively male or female. For example, some people have a gender identity that blends elements of being a man or a woman or a gender identity that is neither male or female.”

Examples of Unlawful Discrimination Against Non-Binary Employees

The NYCHRL provides examples of discriminatory practices that are now illegal under the law’s broader definition of gender. While the new rules include specific examples, it’s important to note that the list of examples doesn’t rule out any other potential violations of the NYCHRL. Employers cannot deliberately refuse to use an employee’s chosen pronoun, name, or title. For example, an employer cannot call an employee who is a transgender woman “Mr.” after she makes it known that she prefers female titles. Additionally, an employer cannot refuse to call a non-binary or transgender employer by his or her preferred name. 

Employers cannot refuse to allow employees to provide proof of a medical procedure or court-ordered name change before they will agree to use an individual’s preferred pronoun, name, or title. Similarly, employers cannot refuse to change an employer’s email address to include his or her preferred name. 

Employers cannot use a non-binary employee’s gender expression as a reason to refuse a request for reasonable accommodations for a disability. Similarly, an employer cannot refuse a request for a change to the terms or conditions of the employee’s employment based on gender expression. Finally, employers cannot exclude, limit, or deny a non-binary employee from services or benefits because of his or her gender expression or identity.

Discrimination Against Non-Binary Employees Regarding Restroom Facilities

In some cases, New York City employers illegally discriminate against employees by forcing them to use single-gender facilities or programs that align with their gender identity. For example, a non-binary employer could be biologically male but prefer not to use a male bathroom. Employers must allow employees to use restroom facilities or workplace programs that are consistent with their own gender identity. 

Discrimination Against Non-Binary Employees Regarding Clothing

The NYCHRL also prohibits employers from requiring non-binary employees to adhere to a male-only or female-only uniform. For example, an employer cannot require a non-binary employee who is biologically female to wear a dress code for females, such as skirts or dresses. Additionally, employers cannot refuse to allow biological male employees to refrain from wearing clothing traditionally associated with somen, such as dresses, skirts, or high heels.

Non-Binary Protections Through New York State’s GENDA

New York State’s Gender Expression Non-Discrimination Act (GENDA) law has added “gender identity or expression” as a protected category under the New York State Human Rights Law (NYSHRL). Now, the law defines a person’s “gender identity or expression as “a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-based characteristics regardless of the sex assigned to that person at birth, including but not limited to the status of being transgender.” When an employer discriminates against a non-binary employee, the employee can file a discrimination claim through New York State. 

Advocating for Your Rights

If you’ve experienced workplace discrimination based on your non-binary identity, you may be entitled to compensation. At Lipsky Lowe LLP, our experienced employment lawyers will review your case and advise you as to your best legal options. Depending on the facts of your case, you may be able to file a complaint against your employer through New York City, New York State, or through a lawsuit to recover back pay, compensatory damages, and damages for emotional distress caused by the discrimination. The most important thing you can do to protect your case is to file for compensation as soon as possible. Contact Lipsky Lowe LLP today to schedule your initial consultation as soon as possible.