By Nila Merola and Cameron A. Smith

Seyfarth Synopsis: Both houses of the New York State Legislature passed the Gender Expression Non-Discrimination Act, which prohibits discrimination on the basis of gender identity or expression and adds offenses motivated by gender identity or expression to the hate crimes statute.

On January 15, 2019, both the New York State Senate and Assembly passed the Gender Expression Non-Discrimination Act (“GENDA” or the “Act”). Governor Cuomo is expected to sign the Act into law. GENDA’s effective date will be thirty days after Governor Cuomo signs the Act into law (except for the provisions amending the Penal Law and Criminal Procedure Law, which will not be effective until November 1, 2019).

GENDA adds Subdivision 35 to Section 292 to the Executive Law, which defines “gender identity or expression” to mean “a person’s actual or perceived identity, appearance, behavior, expression or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.” The Act also amends the State Executive Law, Civil Rights Law, and Education Law to prohibit discrimination in employment, housing, education, and public accommodations, among others, based on gender identity or expression. GENDA also amends the State penal law and criminal procedure law to include certain offenses regarding gender identity or expression within the list of offenses subject to treatment as hate crimes.

Since 2008, GENDA has passed the Assembly 10 times, but has consistently failed in the Senate. In 2016, the New York State Division of Human Rights adopted new regulations that ban discrimination and harassment on the basis of gender identity, gender dysphoria, and transgender status, but GENDA now writes those regulations into law. With GENDA’s passage, New York State joins at least nineteen other states, the District of Columbia, and 157 cities and counties in the United States, including New York City, that have already passed gender-inclusive legislation.

This is a good time for all employers to review their existing anti-harassment and anti-discrimination policies to ensure that they comply with both the New York City Human Rights Law and GENDA. Employers should also ensure that they incorporate gender identity, gender expression, and the status of being transgender into their anti-harassment and anti-discrimination trainings, and clarify that discrimination or harassment on those bases is unlawful.

The attorneys at Seyfarth Shaw LLP are available to provide any assistance with ensuring that you have robust anti-harassment and anti-discrimination policies in place. We can also provide interactive anti-harassment training tailored to your company’s specific business and needs.

By Daniel B. Klein and Kelsey P. Montgomery

Seyfarth Synopsis: Massachusetts Governor Charlie Baker recently signed the Transgender Public Accommodations Bill into law. Massachusetts now protects transgender persons from discrimination in places of public accommodation. Specifically, a transgender person now has the right to use the restroom and locker room that matches that person’s gender identity.

On July 8, 2016, Governor Baker signed into law a bill that prohibits discrimination against transgender persons in restaurants, movie theaters, bars, hotels, and other places of public accommodation. This legislation aims to protect persons whose gender identity differs from that typically associated with their sex assigned at birth.

While Massachusetts has prohibited transgender discrimination in housing, education, and employment since 2011, those same protections are now extended to public accommodations. Specifically, this law protects a transgender person’s right to use the restroom and locker room that matches that person’s gender identity.

The House of Representatives and Senate had approved similar versions of this bill in early June and May 2016, respectively. These bills were referred to conference committee where their differences could be reconciled.  On July 6, 2016, the committee issued a compromise bill that kept the House provisions authorizing the Attorney General’s Office to create regulations for law enforcement agencies should anyone invoke gender identity for an “improper purpose” and the Massachusetts Commission Against Discrimination to develop policies and recommendations on when and how a person’s gender identity would be established.  These provisions were key sticking points for some opponents who argued that alleged “predators” could pose as transgender women in order to gain access to women’s restrooms and locker rooms.

The bill will take effect on October 1, 2016, as a result of a second compromise between the House version, which called for a January 1, 2017 implementation, and the Senate version, which would have taken effect immediately.

Although this law protects much more than a transgender person’s right to use the restroom, locker room, or changing room of that person’s choice—this is the issue that concerns retailers and other businesses the most. Generally, best practices suggest offering customers gender-neutral single occupancy restrooms, locker rooms, or changing rooms or providing enhanced privacy in multiple-occupant facilities.

Massachusetts businesses that serve the public, as well as other employers, should also immediately make their employees aware of the rights of transgender persons. Training on sensitivity to gender identity issues and revising non-discrimination policies to include protections for transgender persons are recommended as well.

For more information on this or related topics, please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Workplace Policies and Handbooks Team.

 

 

By Sam Schwartz-Fenwick and Kylie Byron

It seems that not a day goes by without the media reporting on a new “Bathroom Bill.” These bills which have been proposed in a number of states, including Illinois, South Dakota, Washington, and Missouri, aim to restrict the access of transgender people to bathrooms and locker rooms.

Many of these bills focus on public facilities and, frequently, the rights of students under Title IX of the Civil Rights Act of 1964. These bills while addressed to the public sector, raise important questions for employers. Indeed, employers with increasing frequency are navigating “the restroom question” in their workplaces.

To guide employers through this issue, both the Federal government and certain states have issued guidance. Recently, the California Department of Fair Employment and Housing released its own set of bathroom-related guidelines. The guidelines also addressed a number of other transgender employment related topics, which we wrote about here.

The DFEH guidelines provide that “all employees have a right to safe and appropriate restroom facilities.” The guidelines go on to instruct employers that transgender employees have the right to use a restroom or locker room that corresponds to the employee’s gender identity regardless of the employee’s assigned sex at birth. The guidelines underscore that there is not a particular medical or legal event required for an employee to be transgender, and that transgender employees should not be required to show proof of medical or legal status changes in order to be accommodated appropriately.

The DFEH notes that employers should also consider offering a single-occupancy restroom option. Such a bathroom ensures employee privacy. The DFEH guidelines further provide that if an employer provides a single-occupancy bathroom, it must make clear that use of this restroom is voluntary. Employees should not be required to use a single occupancy restroom. A practical benefit of offering a single-occupancy restroom option is that it provides an alternative restroom for employees who do not wish to share a restroom with a transgender coworker.

The instructions provided by the DFEH align with the June 2015 Guidelines of the U.S. Occupational Safety and Health Administration (OSHA). OSHA’s Guidelines provide that transgender employees must be provided access to the restroom that matches their gender identity. OSHA notes that refusal to provide such access can result in health problems and potential liability.  Like the DFEH, OSHA also recommends providing a single-occupancy restroom, which employees can use who are uncomfortable with using gendered restrooms.

This guidance of the DFEH and OSHA underscores that Employers should increase their awareness of and sensitivity to issues related to gender identity and expression in the workplace. Employers should also continue to evaluate and update their internal policies, practices and procedures with an eye towards these state and federal guidelines. Employers in deciding what if any changes to make should also keep in mind the Equal Employment Opportunity Commission’s recent interpretation of Title VII as prohibiting discrimination based on gender identity.