Issue link: https://viewer.e-digitaledition.com/i/808716
LEADING UP TO the presidential election last November, gender-neutral bathroom access seemed to be a hot-button issue. However, misleading or controversial reporting on this issue did little to clarify obligations for employers and healthcare facilities alike. The information below sets forth the current state of the law in New York for transgender individuals. BATHROOM ACCESS Currently, there are no New York state- wide laws about bathroom access. Rather, only New York City has a bathroom access law. On June 28, 2016, Mayor Bill de Blasio approved a law requiring a ll publicly accessible single-occupancy restrooms in New York City to become gender neutral. Under the law, if the establishment has only one publicly accessible bathroom, then it must post the appropriate signage and be gender neutral. The law requires all covered establishments to replace any gender-specific signage on single- occupancy restrooms with new signage indicating that the restrooms may be used by all individuals. The new law does not aect single-sex bathrooms with mul- tiple stalls. FURTHER NEW YORK CITY PROTECTIONS As of late 2015, under the New York City Human Rights Law (NYCHRL), protec- tion against gender-based discrimination extends to discrimination based on "gender identity and expression." The NYCHRL already protected lesbian and gay employ- ees. The change extended this protection to gender identity and expression, as well. Under the NYCHRL, it is illegal for covered entities and employers to treat protected indiv idua ls " less wel l t ha n others." A s it applies to employers, it is un law f u l to f i re, ref use to h i re or promote, or set d i f ferent ter m s a nd cond it ion s of employ ment , such a s prov iding dif ferent benef its or work assig nments to individua ls protected under this law. The Commission lists the following categories of violations under the g uidelines: + Failing to use an individual's preferred name or pronoun + Refusing to allow individuals to utilize single-sex facilities and programs consistent with their gender or gen- der identity + Sex stereotyping + Imposing dierent uniforms or groom - ing standards based on sex or gender + Providing employee benefits that dis- criminate based on gender + Considering gender when evaluating requests for accommodations + Engaging in discriminatory harassment + Engaging in retaliation To ma i nt a i n t he covered ent it y 's traditiona l dress code, covered enti- ties may create gender-neutra l dress codes and grooming standards, such as casual, business casual, casual elegant or forma l. Covered entities ca n a lso modify a gender-specific dress code from a "requirement" to a "suggestion." These general and gender-neutral dress codes can convey the same message to patrons, while satisfying the new standards under the law. NEW YORK STATE'S ADOPTION OF PROTECTIONS Recently, Governor Andrew Cuomo used the New York State's regulatory process to create a new statewide protected class of citizens. This state reg ulation provides a ll tra nsgender New Yorkers with the same standard of protection afforded to New York's transgender state employees since 2009, and other protected classes of New Yorkers since 1945. This statewide reg ulation prohibits both public a nd private entities from d iscr i m i nati n g a nd ha ra ssi n g i nd i- vidua ls on the basis of gender identit y, t ra nsgender st at us a nd gender dys- phoria (a recog nized disabilit y under New York St at e law). P romu l gat ion of this statewide reg ulation will a lso require employers a nd businesses to prov ide rea sonable accommodations to individua ls a lleging gender dyspho- ria . The reg u lation beca me ef fective Ja n.ª20, 2016. TAKE-AWAYS W hen navigating the ma ze of va rious state a nd loca l laws, New York employ- ers need to pay close at tention to the intersection of federa l, state a nd loca l laws. Ef fective litigation avoida nce requi res for ma l policies a nd proce- dures; more impor ta nt ly, key huma n resource person nel or close contact w it h out s ide emplo y m ent c ou n s e l ca n help employers cha r t the correct course through the ma ze. For appro- pr iat e g u ida nce on how t o properly ma nage a nti-discrimination laws, you may spea k w ith one of the at torneys i n Ma r t i n Clea r wat er & B el l L L P 's Employment and Labor Practice Group. G regory B. Reilly and Adam G. G uttell are Partners in MCB's Employment & Labor Practice Group. For more information, visit mcblaw.com. ■ GENDER IDENTITY and Expression Rights in NEW YORK BY GREGORY B. REILLY AND ADAM G. GUTTELL Gregory B. Reilly Gregory B. Reilly Adam G. Guttell 1 4