New York State and New York City Ring in the New Year With More Gender Protections

Last year, in the immediate aftermath of the #MeToo movement, both New York State and New York City passed sweeping legislation that sought to provide additional protections for individuals from sexual harassment (see our prior blog posts here). Perhaps most notable was legislation requiring all New York State employers to adopt a sexual harassment prevention policy by October 2018 and to conduct annual sexual harassment prevention training beginning no later than October 2019, among other things. Neither the State nor City legislatures appear to be slowing down – already this year, both have enacted additional worker protections.

First, New York State has adopted legislation prohibiting discrimination based on gender identity or expression, effective February 24, 2019, and to amend the hate crimes statute to include offenses based on a victim’s gender identity or expression, effective November 1, 2019. “Gender identity or expression” under the State law is defined as, “a person’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, the status of being transgender.” This definition is similar to the recently-updated New York City Human Rights Law definition of gender: “actual or perceived sex, gender identity and gender expression, including a person’s actual or perceived gender-related self-image, appearance, behavior, expression or other gender-related characteristic, regardless of the sex assigned to that person at birth.” (The New York City Council passed Local Law No. 3, also known as the Transgender Rights Bill, in 2002; and passed Local Law No. 8 in 2018 which slightly expanded the definitions of “sexual orientation” and “gender” under the NYCHRL).

Second, on January 20, 2019, the New York City Council’s Reproductive Health Amendment became law and will be effective May 20, 2019. This Amendment prohibits employers from discriminating against employees based on their sexual or reproductive health decisions. The Amendment defines “reproductive health decisions” broadly as:

[A]ny decision by an individual to receive services, which are arranged for or offered or provided to individuals relating to sexual and reproductive health, including the reproductive system and its functions. Such services include, but are not limited to, fertility-related medical procedures, sexually transmitted disease prevention, testing, and treatment, and family planning services and counseling, such as birth control drugs and supplies, emergency contraception, sterilization procedures, pregnancy testing, and abortion.

In practice, this Amendment reiterates many current protections under gender, pregnancy, and disability discrimination laws, but specifically provides that employers are prohibited from taking adverse action, harassing, or retaliating against employees based on their decision to obtain birth control, fertility treatments, or get an abortion. Notably, the Amendment does not require employers to provide reproductive health benefits – it just prohibits adverse employment decisions based upon utilizing such benefits.

Finally, on January 25, 2019, Mayor de Blasio launched a new Gender-Based Anti-Harassment Unit within the NYC Commission on Human Rights. This Anti-Harassment Unit will focus exclusively on investigating complaints of sexual and gender-based harassment and retaliation, including violations of the Stop Sexual Harassment in NYC Act. Mayor de Blasio announced that he expects this dedicated Anti-Harassment Unit to escalate high priority cases more quickly, reduce instances of retaliation, and identify widespread harassment within entities. As part of the Commission on Human Rights, the Anti-Harassment Unit has authority to issue fines up to $250,000 for willful and malicious violations of any provision of the NYC Human Rights Law, including the Stop Sexual Harassment in NYC Act, and can award compensatory damages to victims, including emotional distress damages and other benefits. Employers should confirm their sexual harassment prevention policy complies with the new minimum standards and double-check their compliance with the Stop Sexual Harassment in NYC Act.

As employee protections keep expanding, employers should continue having discussions about how to implement changing laws and stay ahead of the curve.

See our previous blog posts on New York State and City developments here.