Reasonable Accommodations for Gender Transition
Transgender is an umbrella term for people whose gender identity or gender expression is different from the sex that they were assigned at birth. In some cases, transgender individuals may wish to have sex reassignment surgery or transition to living as the gender with which they identify, rather than the sex that they were assigned at birth. Transition may include changing one's name, undergoing sex reassignment surgery, changing documentation, or other steps. Often, this is an emotionally intense period for a transgender person, and it may necessitate some changes, particularly if medication or surgery is involved. Employers are required to provide reasonable accommodations for gender transition, and our New York City transgender discrimination attorneys can advise workers who were denied these accommodations.Reasonable Accommodations for Gender Transition
Most employers are covered by the New York City Human Rights Law, which applies to employers that have at least four employees. Under the New York City Human Rights Law, your employer may not consider your gender when evaluating whether to give you a reasonable accommodation for a gender transition. This makes the New York City law much more favorable to workers in the city than the Americans with Disabilities Act (ADA), which currently explicitly states that "disability" does not include "gender identity disorders" not arising from physical impairment, transsexualism, or other sexual behavior "disorders." This federal law thereby excludes the need for covered employers to provide reasonable accommodations for gender transition.
Requests for reasonable accommodations under local law may include changes in the terms of employment, the use of a public accommodation, or a schedule change. A reasonable accommodation may also include providing leave for medical and counseling appointments or time to recover from surgery or treatment. The bottom line is that if a covered entity provides time off from work to employees for medical or health reasons, it needs to treat a request for a reasonable accommodation related to gender transition, such as time off for surgery, in the same way.Disparate Treatment is Illegal
Accordingly, if you work for an employer that routinely grants unpaid medical leave upon request to workers who have been working at your job for more than a year, but it does not follow the same policy when you need unpaid medical leave for your gender transition, you may have grounds to sue for discrimination under the New York City Human Rights Law.
Similarly, if your employer does not require cisgender employees to provide medical documentation to verify their need for leave, it may not ask you for that medical documentation. It also may not use your request for a reasonable accommodation when determining the accrual of benefits, such as pension rights, retirement, seniority, or bonuses.Retaliation is Also Illegal
Under the New York City Human Rights Law, retaliation against you for asking for a reasonable accommodation is illegal. This means that your employer is not allowed to take any adverse action against you in response to your request for an accommodation so that you may transition.
Adverse actions that are considered retaliatory are those that are reasonably likely to stop individuals from engaging in protected activities. For example, refusing to pay a bonus to an employee who asked for a reasonable accommodation is likely retaliatory and unlawful. Similarly, providing a poor performance review based on work missed due to the need to take time off to transition is likely retaliatory or discriminatory.Your Right to Damages
Damages that may be available to people who successfully establish a case that they were not granted a reasonable accommodation under the New York City Human Rights Law often include compensatory damages, back pay, and front pay. Unlike actions based on Title VII or the Americans with Disabilities Act (ADA), these damages are not capped based on the size of the employer or restricted based on the reason why an employee is undergoing gender transition. Equal protection lawsuits are pending related to gender transition and the ADA, so this area of federal law is currently much less clear than it is within the city for covered employers and employees.Retain a Gender Identity Discrimination Attorney in New York City
Reasonable accommodations for a gender transition should be granted by your employer. You have the right to change your gender or sex so that you are comfortable, and your employer should not create additional barriers to that process. At Phillips & Associates, our experienced New York City attorneys can advise employees on filing internal complaints related to gender expression discrimination, and we can bring a charge or lawsuit afterward if appropriate. Contact us online or at (212) 248-7431 for a free appointment with a gender identity discrimination lawyer. We fight employment discrimination in the Bronx, Queens, Brooklyn, Manhattan, and Staten Island, as well as in Nassau, Suffolk, and Westchester Counties and in New Jersey.
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