Gender Expression is a Protected Class!

Gender Expression is a Protected Class!

Effective February 24, 2019, New York state’s Gender Expression Non-Discrimination Act (GENDA) made it unlawful for employers to discriminate against workers based on their actual or perceived gender identity or expression or transgender status. In the past, the NYSHRL (New York State Human Right Law) prohibited discrimination based on sex and sexual orientation but courts have not interpreted this category to extend to discrimination based on gender identity or expression. With the passage of GENDA, the NYSHRL prohibits discrimination based on gender identity and expression, extending significant protections to transgender and gender variant individuals across the state.

What is Gender Identity or Expression?

GENDA defines gender identity or expression as “a person’s actual or perceived gender-related identity, appearance, behavior, expression, or another gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.” With this new addition to the NYSHRL, transgender employees across the state will receive additional protections against discrimination like those available under the New York City Human Rights Law, which already prohibits discrimination based on gender identity or expression.

What Protections do the NYSHRL offer?

The NYSHRL prohibits discrimination based on age, race, creed, color, national origin, sexual orientation, military status, sex, marital status, or disability. Gender identity and expression is now included as a category. Discrimination occurs when an adverse action, such as discipline, termination, failure to hire, or refusal of services, is taken against an individual because they belong to one of these categories. The protections of the NYSHRL prohibit discrimination by employers, labor organizations, places of public accommodation, educational institutions, and housing establishments. The NYSHRL allows individuals who successfully establish discrimination to recover damages such as lost wages, emotional damages, and attorney’s fees.