Workplace Restrooms To Be Based On Gender Expression In New York

A newly approved gender nondiscrimination law in New York will change the way employees in the state select restrooms starting Monday, February 25.

Signed into law by the state governor on January 25, 2019, the Gender Expression Discrimination Act (GENDA) prohibits employers from discrimination against individuals on the basis of gender expression or identity. The law defines “gender identity or expression” as a person’s perceived or actual gender-related behavior, appearance, expression, identity, or other characteristics related to gender “regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.”

In other words, employees will be able to use their workplace restrooms or public accommodation across the state based on how they perceive themselves, not minding the organs they have.

Prior to the amendment of the New York State Human Rights Law (NYSHRL) to accommodate the new bill, the article prohibited employment discrimination based on a list of protected categories which include disability, orientation, age, sex, race, sexual orientation, pregnancy, and national origin. With GENDA passed, an individual’s gender expression or identity will be included in protected categories under the NYSHRL.

However, it could be difficult for New York employers to put this into practice – the NYSHRL’s protection for individuals based on gender expression or identity. If an employer is interviewing job candidates, for instance, they [employers] will be required to be mindful of references to a candidate’s name. Also, employers with employees that have announced their plans of gender transition or at the transitioning stage will have various questions to consider. They include how to come up with a restroom usage plan that is convenient, respectful, and accessible to all employees.

GENDA passage in New York means the state has joined other 19 states, which includes Massachusetts, Connecticut, and New Jersey, to prohibit workplace discrimination based on gender expression or/and gender identity.

Employers are required to respond to this new law by updating their employment policies and handbook to be in compliance with the NYSHRL as amended by GENDA and implement all necessary changes. Workplace discrimination related to the new policy will be effective from February 24, 2019.

New York employers must also note that amending their handbook and employment policies is only the first step in complying with the GENDA policy. Workplace culture and other policies must be in support of the new law.

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