City Protections Expand While State Law Plays Catch-Up: New Employee Protections for Gender Identity and Expression and Sexual and Reproductive Health Decisions

New York legislators have hit the ground running in 2019, enacting new legislation expanding employee protections at both state and city levels. Though employers recently updated policies prohibiting discrimination, harassment and retaliation to comply with New York State’s new sexual harassment law, employers must once again review such policies to ensure compliance with these new requirements.

On Jan. 25, 2019, Gov. Andrew Cuomo signed into law the Gender Expression Non-Discrimination Act (GENDA), which amends the New York State Human Rights Law by adding gender identity or expression as a protected class and thus extends protections to transgender and gender nonconforming individuals. GENDA defines “gender identity or expression” expansively as an individual’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, transgender status. While the New York State Division of Human Rights and the New York City Human Rights Commission previously issued guidance regarding protections on the basis of gender identity, GENDA codifies these protections into law statewide. GENDA goes into effect on Feb. 24, 2019.

New York City has continued to expand protections for employees. On Jan. 20, 2019, Mayor Bill de Blasio signed a bill amending New York City’s Administrative Code to prohibit employers from discriminating against an individual based on that individual’s sexual and reproductive health decisions. The law defines “sexual and reproductive health decision” as any decision to receive services relating to sexual and reproductive health, such as receiving fertility-related medical procedures, testing and treatment for sexually transmitted diseases, and engaging family planning services such as the receipt of counseling, birth control and other contraception methods, pregnancy testing, and abortion. The law becomes effective on May 20, 2019.

New York City employers should update their policies addressing discrimination, harassment and retaliation to include a prohibition of such conduct based on an employee’s sexual and reproductive health decisions.

Employers should review anti-discrimination, anti-harassment and anti-retaliation policies to ensure gender identity or expression is included in the list of protected categories. In addition, employers should consider using an employee’s preferred pronouns and ensure an employee’s preferred pronouns are reflected in appropriate employment records, as well as permitting all employees to use bathrooms aligning with their gender identities. Such practices are required under city guidance and may be required by state law.

For questions or concerns regarding compliance with the state’s or the city’s new protections, please contact a member of Kramer Levin’s Employment Department.