GENDA FALL 2020 PRESENTATION

Transcript

1. Know the Law: LGBTQ+ Rights Under the NYS Human Rights Law NYS Division of Human Rights September 2, 2021
2. 2 What We’ll Cover Today •Definitions (Courtesy of the Human Rights Campaign) •Overview of New York State’s Human Rights Law •Gender Expression Non-Discrimination Act (GENDA) •DHR's Complaint Investigation Process
3. 3 Definitions
4. 4 Gender identity One’s innermost concept of self as male, female, a blend of both or neither – how individuals perceive themselves and what they call themselves. One's gender identity can be the same or different from their sex assigned at birth.
5. 5 Cisgender A term used to describe a person whose gender identity aligns with their sex assigned to them at birth.
6. 6 Gender non-conforming A broad term referring to people who do not behave in a way that conforms to the traditional expectations of their gender or whose gender expression does not fit neatly into a category.
7. 7 Non-binary A person who does not typically identify, nor relate to, the gender norms and/or rigid binary system associated with the male/female dichotomy. Non-binary people may identify as being both a man and a woman, somewhere in between, or as falling completely outside these categories. While many also identify as transgender, not all non-binary people do.
8. 8 Gender-fluid A person who does not identify with a single fixed gender; or relating to a person having or expressing a fluid or unfixed gender identity.
9. 9 Gender transition The process by which some people strive to more closely align their internal knowledge of gender with its outward appearance. Some people socially transition, whereby they might begin dressing, using names and pronouns and/or be socially recognized as another gender. Others undergo physical transitions in which they modify their bodies through medical interventions.
10. 10 Transgender An umbrella term for people whose gender identity and/or expression is different from cultural expectations based on the sex they were assigned at birth. Being transgender does not imply any specific sexual orientation. Therefore, transgender people may identify as straight, gay, lesbian, bisexual, etc.
11. 11 WHAT ARE PERSONAL PRONOUNS AND WHY DO THEY MATTER? • Personal pronouns enable people to identify themselves • Using someone’s correct personal pronouns is a way to respect them and create an inclusive environment • It can be offensive to guess someone’s pronouns and use those pronouns if that is not how that person wants to be known
12. 12 Source: Best Life
13. 13 Overview of Human Rights Law
14. 14 New York State Human Rights Law • New York was the first state in the United States to have an anti- discrimination law. • The predecessor statute to the Human Rights Law was passed in 1945. • 2020 marked the 75th anniversary of the Law. • The Human Rights Law “shall be deemed an exercise of the police power of the state for the protection of the public welfare, health and peace of the people of this state, and in fulfillment of the provisions of the constitution of this state concerning civil rights.” -- Human Rights Law § 290.2
15. 15 Major Areas of Jurisdiction •Employment, including employment agencies and unions •Housing (as of April 2019) includes lawful source of income •Places of public accommodation •Non-religious educational institutions •Credit
16. 16 Other Areas of Jurisdiction •Insurance (arrest records) •Licensing (professional and occupational licenses) •Boycott/blacklisting •Volunteer firefighters
17. 17 Protected Classes Under the HRL • Sexual Orientation • Gender Identity or Expression • Race, Color • Familial Status • National Origin • Creed • Sex • Age – 18 and up • Disability
18. 18 Protected Classes Under the HRL •Marital Status •Military Status •Predisposing Genetic Characteristics •Favorably resolved arrest records, youthful offender status, sealed records •Prior Conviction Records •Domestic Violence Victim Status •Pregnancy Related Conditions •Retaliation
19. 19 Employment: The HRL Covers •HRL covers all employers, public and private, even if only one (1) employee •Domestic workers are protected from harassment •Interns are specifically covered
20. 20 Employment: The HRL Prohibits •Discrimination in hiring, firing or compensation based on a protected class •Discrimination in the terms, conditions and privileges of employment, including reasonable accommodation •Harassment because of a protected class •Advertisements or applications that indicate discrimination or limitation as to the candidates sought
21. 21 Housing: The HRL Covers •Private or publicly-assisted housing •Rentals, co-ops or condos •Sales of single-family homes •Land or commercial space •Excluded from coverage are owner-occupied, two-family houses
22. 22 Housing: The HRL Prohibits •Refusing to sell, rent or lease housing based on a protected class •Discrimination in the terms, conditions or privileges of housing (including reasonable accommodation) •Harassment because of a protected class •Advertisements, applications or questions that indicate discrimination or limitation, or a preference for certain tenants
23. 23 Places of Public Accommodation: The HRL Covers •Hotels, restaurants, bars, theaters and all places of public entertainment, indoors and out •Hospitals and clinics •Medical and dental offices •Establishments dealing with goods and services of any kind, regardless of size •Public halls and public areas of any building
24. 24 Places of Public Accommodation: The HRL Prohibits: •Discrimination against persons of a protected class by a public accommodation or by any of its owners, managers, agents or employees •Denial of any of the privileges or facilities of a public accommodation, directly or indirectly •Display of any notice or advertisement indicating that the place is not available to members of a protected class •Any other direct or indirect indication that persons of a protected class are unwelcome
25. 25 Educational Institutions: What HRL Covers • Public school districts (pre-kindergarten through high school, and continuing education) • Charter schools • Boards of Cooperative Educational Services (BOCES) • Public colleges and universities • Universal Pre-K, Head Start or other publicly funded pre- kindergarten programs • Private schools at all education levels (excluding those which are for profit, or run by a religious organization)
26. 26 Educational institutions: What HRL Prohibits •To refuse to admit an applicant to a school or an educational program, if that individual is otherwise qualified for the school or program •To terminate a student from a school or an educational program, if that individual continues to be otherwise qualified for the school or program •To permit the harassment of a student or applicant because of any protected characteristic •To otherwise treat a student or applicant differently because of a protected characteristic
27. 27 GENDA
28. 28 Gender Expression Non-Discrimination Act •In January 2019 with the implementation of GEDNA, the HRL was amended to add gender identity or expression as an explicitly covered category •Gender identity has also been protected historically under the sex and disability provisions of the HRL as set forth in DHR’s regulations, found at 9 NYCRR 466.13 and on DHR’s website
29. 29 What Is Gender Identity or Expression? •“Gender identity or expression” is defined in the new amendment as meaning “a person’s actual or perceived gender-related identity, appearance, behavior, expression or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender”. HRL 292.35
30. 30 Unlawful discrimination on the grounds of gender identity or expression can include: •Questions about gender identity or expression, or assigned sex at birth, such as in a job or housing interview •Refusing to hire for a job, to rent an apartment or to allow equal access to credit, a public accommodation or a school •Terminating employment or housing •Denying the use of restrooms or other facilities consistent with a person’s gender identity •Forcing a transgender person to use a single-occupancy restroom because of someone else’s concerns
31. 31 Unlawful discrimination on the grounds of gender identity or expression can include: • Requiring individuals to show medical or other documents in order to use facilities such as restrooms, locker rooms or residential facilities consistent with their gender identity • Requiring grooming, uniform or appearance standards based on sex stereotypes • Providing benefits, leave or reasonable accommodations that differ based on gender • Refusing to use an individual’s name or pronouns
32. 32 Questions about gender identity or expression in employment Example: • Alison was hired for a job at ABC organization and identifies as a woman. Her manager learns that Alison was assigned male at birth and begins referring to her as “he” to other co-workers. Alison’s manager says that he will use the correct pronouns if Alison “shows proof” of her identity.
33. 33 Questions about gender identity or expression in employment Example: • Daniel Smith is hired at XYZ corporation. The name associated with his social security number is a name he no longer uses because it is inconsistent with his gender identity. His employer refuses to assign an email account or issue business cards with the name Daniel until he obtains a court-ordered name change.
34. 34 Questions about gender identity or expression in employment Example: • Jessie was born intersex, identifies as male and uses “he/him/his” pronouns. When filling out paperwork for company-sponsored life insurance, Jessie indicated “N/A” instead of checking either male or female, as this is factually true and consistent with his birth certificate. The Human Resources manager, who reviewed the paperwork, told other employees about this, and began referring to Jessie “it” when discussing him with other employees.
35. 35 Terminating employment or housing Example: • An individual rented an apartment and filled out the paperwork stating his name is Thomas. The landlord later learns that the sex assigned to Thomas at birth was female. The landlord threatens to evict Thomas, and also harasses him to try to get him to leave.
36. 36 Denying the use of restrooms or other facilities consistent with a person’s gender identity Example: • Jordan is a high school student who is non-binary. Jordan would feel safest using the single sex bathroom assigned to girls. The school administration tells Jordan to use single-occupancy restrooms only.
37. 37 Requiring individuals to show medical or other documents in order to use facilities such as restrooms, locker rooms or residential facilities consistent with their gender identity Example: • Adrian is a transgender woman who needs to attend a residential drug treatment program. The program requires Adrian to submit proof of transition-related medical treatment before it will assign her to the women’s rooms.
38. 38 Requiring grooming, uniform or appearance standards based on sex stereotypes Example: • Leah is a gender non-conforming woman. She works as a flight attendant at an airline that requires uniforms. The only available options are either pants, vest and tie or a dress and a scarf. Leah requests to wear the option that includes pants, vest, and a tie.
39. 39 Requiring grooming, uniform or appearance standards based on sex stereotypes Example: • A restaurant maintains a dress code for its customers that requires only men to wear ties and a jacket and requires only women to wear a dress or skirt.
40. 40 Providing benefits, leave or reasonable accommodations that differ based on gender Example: • Jim is a transgender man and asks his employer for necessary medical leave for gender-affirming treatment. The employer denies the leave time, indicating a religious objection to “facilitating” Jim’s transition by providing the leave and the health insurance coverage for the treatment.
41. 41 Revealing a Person’s Transgender or Gender Non- conforming Status Without Their Consent Example: • Ben is a college student who identifies as a transgender man. He has not legally changed the name on his birth certificate but uses the name Ben as well as the pronouns he/him/his. The college produces a student directory with photographs and contact information. In the student directory Ben’s picture appears with the name given to him at birth, which appears on all formal records.
42. 42 Harassment Example: • Luisa is a transgender woman working in a factory, whose co- workers sometimes make fun of her and call her names related to her transgender status. Luisa’s supervisors are aware of this harassment but tell her there is nothing they can do about it.
43. 43 Refusing to use an individual’s name or pronouns Example: • A transgender woman, Anna Jones, has a medical appointment. She told the receptionist she uses the title “Ms.” and filled out her intake paperwork accordingly. When it is time for her to see the doctor, the nurse calls out for “Mr. Jones.”
44. 44 What Happens When Discrimination Occurs: DHR enforces HRL • Investigation and Adjudication • Rights and Remedies
45. 45 Complaint Investigation The Human Rights Law requires that the Division investigate complaints promptly, to determine if the Complainant was discriminated against because of membership in a protected class. If DHR finds that discrimination occurred, remedies may include: • reinstatement to a job, with back pay; • provision of housing or access to public accommodation; • compensation for mental anguish; • an order to cease the discriminatory policies; • a requirement that training be conducted; • civil fines and penalties.
46. 46 Appeals and Enforcement •Either side may appeal the Commissioner’s Final Order to state court, where the cases are heard in the Appellate Division. •Complainant may have private counsel, or a Division attorney submits a brief and appears in court to defend the Commissioner’s Order where discrimination is found to have occurred. •The Division will also seek court enforcement of the Commissioner’s Order, should a respondent fail to comply with the terms of the Order.
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