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Although neither federal nor New York law expressly prohibits discrimination on the basis of gender identity or expression, the New York State Division of Human Rights issued regulations that will interpret the state’s anti-discrimination prohibitions to cover transgender individuals. These regulations make discrimination or harassment against transgender applicants and employees unlawful, and require employers to accommodate transgender individuals who have been diagnosed with a medical condition referred to as “gender dysphoria” – a medical condition related to an individual having a gender identity different from the sex assigned to him or her at birth.
In addition, the New York City Commission on Human Rights also issued a guidance document on what constitutes discrimination against transgender people under the New York City Human Rights Law. The Commission’s guidance provides numerous examples of employer actions that violate the NYCHRL, including failure to use an individual’s preferred name, pronoun or title, denying transgender employees the use of restrooms consistent with their gender identity, and even enforcing dress codes that make differentiations based on sex or gender. The Commission’s guidance also announces much more strict penalties for transgender discrimination: civil penalties can range from $125,000 to $250,000 for violations that are deemed to be “willful, wanton or malicious.” The Commission announced that, among other factors, it will consider the lack of an adequate discrimination policy as a factor in assessing penalties.