Sexual Orientation and Gender Identity Discrimination
Workers are protected from discrimination based on a wide range of categories under federal, state and local laws. While prohibitions on race, religion, age and sex discrimination have been recognized for decades, sexual orientation and gender identity have not received the same treatment until recently. As a result, enforcement of such laws can be challenging as both employers and employees learn to identify, prevent and address these claims. An experienced employment attorney can help minimize liability risks for employers or redress unlawful conduct for employees.
What is Sexual Orientation and Gender Identity Discrimination?
Illegal discrimination occurs when a person is subjected to inferior treatment because of a characteristic protected by law. In the case of sexual orientation and gender identity discrimination, claims were originally brought under sex discrimination laws because they were at least partly based on “sex.” However, not all courts agreed with this argument. While many states and cities prohibit such discrimination, only recently has federal law done so.
Sexual orientation discrimination is typically based on actual or perceived sexual orientation, including, but not limited to, heterosexuality, homosexuality, bisexuality or asexuality. Gender identity and expression discrimination applies to differential treatment based on a person’s actual or perceived gender-related identity, appearance, behavior, expression or other gender-related characteristic.
Discriminatory conduct can occur in hiring, firing, promotions and other terms and conditions of employment. Examples include, but are not limited to:
- Refusing to use an individual’s requested name, pronoun or title
- Refusing to allow individuals to use facilities consistent with their self-identified gender
- Imposing different appearance standards based on gender
- Unequal terms, conditions or benefits based on gender identity
- Revealing a person’s transgender or gender non-conforming status without their consent
- Refusing to hire an applicant
- Refusing to promote an otherwise-qualifying employee
Also prohibited is harassment based on sexual orientation and gender identity. This may include humiliating, abusive or threatening remarks, name-calling and inappropriate physical contact.
Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of classes including race, religion and sex, but it does not expressly identify sexual orientation, gender identity or transgender status as protected classes. However, in June 2020, the U.S. Supreme Court held that Title VII protects persons from discrimination based on sexual orientation and gender identity.
New York Law
Discrimination based on sexual orientation and gender identity is prohibited by both New York State and New York City statutory law.
New York State Human Rights Law (NYSHRL)
In 2002, New York passed the Sexual Orientation Non-Discrimination Act (SONDA) prohibiting discrimination in the workplace on the basis of actual or perceived sexual orientation. In 2019, the state amended the NYSHRL by passing the Gender Expression Non-Discrimination Act (GENDA). GENDA explicitly included “gender identity or expression” as a protected class in employment, among other categories. These laws apply to all employers regardless of the number of employees.
New York City Human Rights Law (NYCHRL)
The NYCHRL prohibits discrimination on the basis of gender, which encompasses “actual or perceived sex, gender identity, and gender expression including a person’s actual perceived gender-related self-image, appearance, behavior, expression, or other gender-related characteristic, regardless of the sex assigned that person at birth.” As with state law, this applies to all employers, regardless of size.
How Can Employees Enforce Their Rights?
Employees who have been discriminated against may be able to file complaints under federal, state and/or city law. The requirements vary and it is important to consult an attorney regarding appropriate procedures to obtain redress.
Under federal law, employee claims can be filed with the Equal Employment Opportunity Commission (EEOC), which is the federal agency charged with enforcing federal laws relating to workplace discrimination. The EEOC handles complaints related to all aspects of employment, including hiring, firing, promotions, harassment, training, wages and benefits. Federal discrimination laws generally only apply to employers with at least 15 employees (20 employees for age discrimination), labor unions and employment agencies.
Discrimination claims must be first filed with the EEOC before a victim can go to court. If the EEOC does not resolve the claim within 180 days, the employee can obtain a “Notice of Right to Sue” from the EEOC and then bring an action in federal or state court within 90 days of the date the notice was received.
New York State
The New York State Division of Human Rights (NYSDHR) handles enforcement of discrimination laws involving employment, housing, places of public accommodation and non-religious schools. Employees can file a discrimination complaint against an employer with the DHR or bring a lawsuit in the New York state courts.
If an employee goes to the NYSDHR, the agency will review the complaint and then decide whether to send it to an administrative law judge for a final order. Employees can appeal these orders to state court, if necessary. The complaint must be filed with the NYSDHR within one year of the last alleged act of discrimination. Where an employee chooses to go straight to court, the suit must be brought within three years of the last act of discrimination.
New York City
Employees in New York City who experience discrimination can file a complaint with the New York City Human Rights Commission’s (NYSHRC) Law Enforcement Bureau. Complaints must be filed within one year of the last alleged act of discrimination or three years for cases involving gender-based harassment. As under state law, employees can bring a lawsuit in the New York state courts within three years from the last act of discrimination.
Both the NYSDHR and NYCHRC can issue cease and desist orders against the employer and order employee reinstatement, payment of lost wages or emotional distress damages, and civil penalties against the employer.
How Can Employers Avoid or Minimize Their Risks of Liability?
Employers can minimize potential discrimination and protect themselves from liability by instituting written workplace anti-discrimination policies and employee training. An attorney can draft an employee handbook as well as develop investigation and complaint procedures to help ensure employers respond appropriately to any claims.
In the event of a complaint, employers should prepare detailed documentation of the allegations and any action taken by the employer and consult legal counsel to understand how to best handle the subsequent investigation.
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