New York State and New York City laws prohibit employment discrimination with regards to bathroom choice. On February 24, 2019, New York State passed the Gender Expression Non-Discrimination Act (GENDA), amending the New York State Human Rights Law. Under GENDA, it is unlawful to refuse someone access to a single-sex restroom, or other single-sex facilities, appropriate to their gender identity. For example, if a person chooses to use the women’s room because they identify as a woman, though they were born a man, they cannot be required to use the men’s room.
Under the New York City Human Rights Law, all people have the right to use the single-gender facilities, such as bathrooms or locker rooms, most closely aligned with their gender identity or expression, regardless of their gender expression, sex assigned at birth, anatomy, medical history, or the sex indicated on their identification. NYCHRL’s guidance on Gender Identity and Gender Expression suggests creating policies and mandating trainings on compliance with this policy. Further, the guidance suggests having gender-neutral, single occupancy restrooms to help avoid violations of the NYCHRL to accommodate a person’s request to use a single-occupancy restroom because of their gender, or as an alternative for any individuals who may “express discomfort” from sharing a facility with a transgender, non-binary, or gender non-conforming person. Importantly, it is unlawful to require a person to use a single-occupancy restroom because they are transgender, non-binary, or non-conforming.
Additionally, New York City’s Local Law 79 requires all single-occupant restrooms in New York City to be gender-neutral. The law requires signs be posted on the bathrooms indicating that it is for all sexes. The law does not mandate the construction of single-occupant bathrooms or require any physical alterations to any existing single-occupant toilet rooms, except for the posting and maintenance of appropriate signage as required. Individuals cannot be discriminated against due to their choice for using a gender-neutral bathroom.
Employers should be aware of the potential liability under these laws. Under the State Human Rights Law, employees covered in the State can bring a claim within one year after alleged discriminatory conduct for compensatory and punitive damages, and civil penalties may be imposed. Under the City Human Rights Law, covered employees in the City can bring a claim for gender-based harassment with the Commission’s Law Enforcement Bureau or in court within three years of the discriminatory act for compensatory and punitive damages, and civil penalties may be imposed. Building owners in violation of Local Law 79 may have fines imposed, may be required to appear before the City’s Environmental Control Board, and must correct the violation.
Creating clear policies prohibiting discriminatory access to single-gender facilities, training employees on these policies, and creating gender-neutral restrooms could help avoid violations of these laws. However, employers cannot force someone to use a single-occupancy restroom because of their gender or gender-identity.
Employers are not the only ones who need to worry about liability for gender identity discrimination. Statewide reporting on harassment incidents in New York public schools between 2010 and 2015 showed that 19% of harassment incidents were related to a student’s sex, gender, or sexual orientation. The New York State Human Rights Law protects all transgender individuals across the state, including those in schools. Further, the City’s Guidance, in providing examples of violations of the Human Rights Law, include a public university prohibiting a transgender man from using the men’s restroom, and barring a non-binary student from a single-gender after-school program. All transgender individuals, from employees to students, are protected against unlawful gender identity discrimination in both New York State and New York City.
Written by Emily Entwistle
