Gender Identity Discrimination

Knowledgeable New York City Attorneys Protecting Your Workplace Rights

Gender identity refers to a person's internal sense of their gender, which might be the same as or different from the sex that they were assigned at birth. Gender identity may be male, female, neither, both, and transgender. Gender identity is different from sexual orientation, which refers to the gender or genders to which a person has sexual attraction. Gender identity discrimination is illegal in New York, and you should consult a sex discrimination lawyer if you believe that you may have been a victim of this form of misconduct. At Phillips & Associates, our New York City gender identity discrimination lawyers may be able to represent you in a lawsuit for damages.

Gender Identity Discrimination

Gender identity discrimination is unlawful under federal, state, and local laws. However, federal law, such as Title VII, does not provide explicit protection to transgender or gender nonconforming workers. State law does provide explicit protection, but relief is not as extensive as it is under local law in New York City.

New York City Law Prohibits Gender Identity Discrimination

The New York City Human Rights Law provides explicit protection to people who face gender identity discrimination in the workplace. Discrimination may take the form of not being hired, not receiving promotions, being terminated, not receiving training that other employees get, or facing gender-based harassment.

Harassment Based on Gender Identity

Gender identity harassment happens if an employee is treated less well than other employees are, based on the employee's gender identity. It may include unwanted touching, jokes, pictures, or gestures that target a worker based on their gender identity. An isolated incident must be very severe to be considered gender identity harassment. In most cases, gender identity harassment is actionable because it creates a hostile work environment—an environment that is so hostile that a reasonable person would perceive it as such. For example, if you are transgender, and your coworkers start circulating transgender pornography and making lewd comments about you when you walk past, this would be gender identity harassment. A gender identity discrimination attorney can help New York City workers determine whether the conduct in their situation may have reached the level of a hostile work environment.

Sometimes discrimination takes subtler forms. Under the New York City Human Rights Law, your employer is supposed to use your preferred name, pronoun, and title, regardless of your appearance or whose sex is indicated on the identification that you present to HR. Intentionally refusing to use this preferred name, pronoun, or title may be a form of gender identity discrimination. For example, repeatedly calling a transgender woman "Mr." after she has already stated that she prefers to be "Ms." may be a form of gender identity discrimination. Similarly, requiring a worker to get a court-ordered name change before agreeing to call the person by that name in the workplace is illegal gender identity discrimination.

Use of Single-Sex Facilities

All workers are supposed to be able to access the single-sex facility that is consistent with their gender identity under the New York City Human Rights Law. Managers and supervisors are supposed to receive training on this point so that no issues come up from someone who is transgender or gender nonconforming or who has a different gender identity using a bathroom that an employer's representative believes is inappropriate. It may be a form of gender identity discrimination to require an employee to use a bathroom that does not conform to their gender identity.

Remedies Under the New York City Human Rights Law

Although gender identity discrimination is implicitly prohibited under Title VII, according to EEOC guidance and some case law, for many employees, it makes more sense to bring a claim under the New York City Human Rights Law, which provides strong, explicit protection to workers on the basis of their gender identity. There is no statutory limit on the compensatory damages that may be awarded if you establish liability in a lawsuit brought under the New York City Human Rights Law. In some cases, punitive damages, reasonable attorneys' fees, costs, reinstatement, back pay, and front pay will be available to a worker who can successfully establish gender identity discrimination.