Businesses in New York City, be warned: If you intentionally and repeatedly refer to a transgender worker as a “he” when the person prefers “she,” you could be setting yourself up to face a discrimination lawsuit.
The NYC Commission on Human Rights recently released updated guidelines to clarify what actions are considered discrimination on the part of business owners, particularly with regard to transgender and gender non-conforming employees in the workplace. Under the rules, employers are required to use the employee's chosen name, pronoun and title "regardless of the individual’s sex assigned at birth, anatomy, gender, medical history, appearance, or the sex indicated on the individual’s identification."
For transgender and gender non-conforming people, preferred pronouns can include he/him/his, she/her/hers, they/them/theirs or ze/hir. If you are unsure what someone’s preferred pronoun is, it is within your right to ask. The NYC Commission on Human Rights notes that checking with an employee to make sure you have the correct name and pronoun is not a violation of the New York City Human Rights Law (NYCHRL).
An action that does constitute a violation of the law, however, is the withholding an employee benefit like health insurance because of someone’s gender or gender identity. In accordance with the NYCHRL, health plans that are offered must include coverage for "transition-related care or gender-affirming care." In that same vein, for something like medical leave, employers are required to “treat leave requests to address medical or health care needs related to an individual’s gender identity in the same manner as requests for all other medical conditions.”
Under the law, employers cannot prevent an individual from using a restroom, locker room or any customarily single-sex facility that aligns with their gender identity, regardless of that person’s sex at birth. For instance, a transgender woman cannot be barred from using the women’s restroom nor be forced to use a single-occupancy restroom. And when it comes to dress codes or uniform standards, instituting a rule that is based on sex stereotyping, like one that requires men to wear ties or women to wear high heels in the office, is prohibited. The NYC Commission on Human Rights recommends creating gender neutral requirements for professional attire.
Those who break the law can be landed with a civil penalty of up to $125,000, but the NYC Commission on Human Rights explains that violations of the NYCHRL "that are the result of willful, wanton, or malicious conduct" can be fined up to $250,000.
While sex has been a federally protected class for decades, in 2002 the New York City Council added the Transgender Bill of Rights to the NYCHRL to extend that protection to gender identity and gender expression. New York City is not the only city -- or state -- that has legislative protections in place for transgender and gender non-conforming individuals. The American Civil Liberties Union says 19 states including the District of Columbia, and at least 200 cities across the country have their own varying laws on the books.