Know Your Rights: LGBTQ+ Rights Under New York State Law

Learn about the recent U.S. Supreme Court decisions on LGBTQ+ discrimination in employment, federal changes that impact the transgender community regarding healthcare, and ultimately learn how, despite these federal changes, New Yorkers remain protected by New York State’s generous laws and protections.

Transcript

1. Know Your Rights LGBTQ+ Rights Under New York State Law NYS Division of Human Rights June 30, 2020
2. 2 We Are Here...Thanks to Them Over 50 years ago, Marsha P. Johnson, Sylvia Rivera and many other brave souls put their lives on the line so that the rest of us might live with the freedom and dignity deserving of all human beings.
3. 3 What We’ll Cover Today •Recent changes regarding LGBTQ+ rights at the federal and state levels •New York State’s Human Rights Law •The Law’s protections for LGBTQ+ New Yorkers
4. 4 Recent Changes at the Federal & State Levels
5. 5 U.S. Supreme Court Rulings •Three cases •Bostock v. Clayton County, Georgia •Altitude Express, Inc. v. Zarda •R.G. & G.R. Harris Funeral Homes Inc. v. EEOC (Stephens) •Title VII of the Civil Rights Act of 1964 now prohibits employment discrimination based on sexual orientation and gender identity or expression.
6. 6 Healthcare & Health Insurance Protections •Rollback of federal rule against discrimination •New York State’s laws and rule still apply •NYS Department of Financial Services •Discrimination by an insurance company •dfs.ny.gov •NYS Division of Human Rights •Discrimination by a healthcare provider
7. 7 Restoration of Honor Act •Signed into law in 2019 by Governor Andrew Cuomo •NYS Division of Veterans’ Services will restore access to State Veterans Benefits •For more information: veterans.ny.gov/content/restoration-honor-act
8. 8 Other NYS LGBTQ+ Protections •Signed into law by Governor Andrew Cuomo •Legalization of gestational surrogacy •Ban on conversion therapy •Ban on gay and trans panic legal defense
9. 9 PRIDE 2020
10. 10 The New York State Human Rights Law
11. 11 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 marks 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
12. 12 Protected Classes Under the HRL • Sexual Orientation • Gender Identity or Expression • Race, Color • Familial Status • National Origin • Creed • Sex • Age – 18 and up • Disability
13. 13 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
14. 14 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
15. 15 Other Areas of Jurisdiction •Insurance (arrest records) •Licensing (professional and occupational licenses) •Boycott/blacklisting •Volunteer firefighters
16. 16 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
17. 17 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
18. 18 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
19. 19 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
20. 20 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
21. 21 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
22. 22 Human Rights Law Protections on the Basis of Sexual Orientation
23. 23 Amendment Adding Sexual Orientation to the HRL •“Sexual orientation” was added the HRL as a protected class by the Sexual Orientation Non-Discrimination Act (SONDA), Laws of 2002, ch. 2. •SONDA was effective January 16, 2003. •Discrimination on the basis of sexual orientation is prohibited in all areas of jurisdiction under the Human Rights Law, including employment, housing, places of public accommodation and schools.
24. 24 Definition •The term “sexual orientation” means heterosexuality, homosexuality, bisexuality or asexuality, whether actual or perceived. Human Rights Law § 292.27
25. 25 NYSDHR Orders Sexual Orientation Discrimination •Correctional Services v. Division of Human Rights, 53 A.D.3d 823 (3d Dept. 2008) •Commissioner’s Order that a correction officer was subjected to a hostile work environment because of her sexual orientation and her sex, was subsequently retaliated against, and that management failed to respond to her complaints supported by substantial evidence. $200,000 in mental anguish damages awarded to the Complainant.
26. 26 NYSDHR Orders Sexual Orientation Discrimination •County of Onondaga v. Mayock, 78 A.D.3d 1632 (4th Dept. 2010). •County discriminated against probation officer based on his sexual orientation when it refused to transfer him to a supervisory position he had previously held. Commissioner’s Order requiring reinstatement with back pay and $25,000 in compensatory damages for mental anguish confirmed in its entirety.
27. 27 NYSDHR Orders Sexual Orientation Discrimination •NYS Division of Human Rights v. Stennett, 98 A.D.3d (2nd Dept. 2012). •Division’s petition seeking enforcement of a Commissioner’s order finding housing discrimination based on sexual orientation granted. The Appellate Division confirmed the award of $100,000 compensatory damages for mental anguish and $10,000 in punitive damages to the tenant, as well as a fine of $25,000 payable to New York State as a civil penalty.
28. 28 Marriage Equality •NYS Marriage Equality Act of 2011 authorized marriages between couples of the same sex in New York State. •New York also recognizes such marriages validly performed in other jurisdictions. •The Division began enforcing the provisions of the HRL’s prohibition against sexual orientation discrimination based on an employer’s refusal to give equal benefits to married same-sex couples with the first case it received, in 2006.
29. 29 Same-Sex Spouses •It is sexual orientation discrimination to take any adverse action because an employee is married to a spouse of the same sex. •Spousal benefits must be provided to same-sex spouses in the same manner that they are provided to spouses who aren’t of the same sex.
30. 30 Personal Religious Beliefs Not a Defense – Places of Public Accommodation • Division of Human Rights on the Complaint of McCarthy v. Liberty Ridge Farm LLC et al, SDHR Case No 10157963, affirmed Appellate Division, 137 A.D.3d 30 (3d Dept. 2016) • Complainants sought to rent Respondent’s property, a place of public accommodation, to hold their wedding. Respondents, who run and market a business that is not a religious corporation, and offer their property to the public for weddings, refused to rent because of their policy, based on their religious beliefs, not to provide wedding space for same-sex couples. The Commissioner found the Respondents had discriminated against the couple based on their sexual orientation and awarded $3,000 in damages as well as a civil penalty of $10,000.
31. 31 Human Rights Law Protections on the Basis of Gender Identity or Expression
32. 32 Gender Identity or Expression •In January 2019, the HRL was amended to add gender identity or expression as an explicit covered category •Gender identity is also protected 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
33. 33 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
34. 34 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
35. 35 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
36. 36 Refusing to Use an Individual’s Requested Name, Pronoun, or Title 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.”
37. 37 Refusing to Use an Individual’s Requested Name, Pronoun, or Title 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.
38. 38 Refusing to Use an Individual’s Requested Name, Pronoun, or Title 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.
39. 39 Refusing to Allow Individuals to Use Facilities Consistent with Their Self-Identified Gender 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.
40. 40 Refusing to Allow Individuals to Use Facilities Consistent with Their Self-Identified Gender 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.
41. 41 Imposing Different Appearance Standards Based on Gender 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.
42. 42 Imposing Different Appearance Standards Based on Gender 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.
43. 43 Unequal Terms, Conditions or Benefits Based on Gender Identity 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.
44. 44 Revealing a Person’s Transgender or Gender Non- conforming Status Without Their Consent 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.
45. 45 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.
46. 46 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.
47. 47 Harassment 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.
48. 48 NYSDHR Orders Gender Identity Discrimination • In Fuller v. Advanced Discovery, the Commissioner found that the Complainant had been discriminated against when her employer fired her after she presented legal documentation changing her name to align with her gender identity. • Complainant was awarded back pay plus $30,000 in mental anguish damages • The employer was ordered to pay a civil fine of $20,000. • This case was affirmed in its entirety by the Appellate Division, 162 A.D.3d 659 (2d Dept. 2018).
49. 49 NYSDHR Orders Gender Identity Discrimination •In Valentine v. Thruway Authority, SDHR case #10116524, the Commissioner found that the employer was liable for sex and disability discrimination because it terminated Complainant’s employment because of gender dysphoria. •Complainant was awarded back pay and $20,000 in compensatory damages for mental pain and suffering
50. 50 Human Rights Law Protections in Education
51. 51 NYSDHR Jurisdiction Over Public Schools •In 2019, the Human Rights Law was amended to prohibit discrimination against students at public educational institutions. •The law applies to actions that occur on or after July 25, 2019. •Gender identity or expression, and sexual orientation, are both covered under education.
52. 52 What Schools Are Covered by the Law? •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 •Not-for-profit private schools, not run by a religious organization, at all education levels (elementary, high school, university, etc.)
53. 53 Discrimination in Education Example: •Maria is a college student who wanted to get into a highly competitive program offered by her school. One of her professors said that if she would engage in a sexual relationship with him, he could get her into the program. Maria turned him down, but she got into the program anyway.
54. 54 Discrimination in Education Example: •Jackson is a Black male high school student. He plays on a school sports team, and he is subjected to locker- room racial jokes and pranks from his teammates. He complains to the coach, who tells him they are just kidding around, and to ignore it. •What should happen?
55. 55 Discrimination in Education Example: •Louisa is transgender. She experiences taunts and assaults on the school bus because of her gender identity. The school district says it cannot control the school bus because transportation services are provided by a busing contractor. •What should happen?
56. 56 Discrimination in Education Example: •A high school principal will not give permission for an LGBTQ student group to meet on the premises after school, despite the fact that various student interest groups hold such meetings.
57. 57 Discrimination in Education Example: •Arthur’s parents are told by a charter school that they cannot accept Arthur because of his autism.
58. 58 Enforcing the Human Rights Law at the Division of Human Rights • Investigation and Adjudication • Rights and Remedies
59. 59 COVID-19 Response: Temporary Changes to the Complaint Process •New complaints can be filed via mail, email, or fax and without notarization of the complaint. •DHR staff will take new complaints over the phone for any individual who requires an accommodation for a disability or without access to a computer. •If your time to file a complaint, or appeal a DHR decision, would have expired during the COVID-19 pandemic, you now have until July 6 to do so. •Visit us online: https://dhr.ny.gov/coronavirus-response
60. 60 Filing a Complaint •The Division of Human Rights has regional offices around the state where information may be obtained and a complaint filed. •Complaint forms are also available on the Division’s website, dhr.ny.gov. •A complaint must be filed with the Division within one year of the occurrence of the discrimination. •Complaints may be filed directly in state court, within three years of the alleged discrimination. •Complaints may not be filed in both the Division and state court.
61. 61 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. •Division regulations provide that the investigation may be made by a field visit, written or oral inquiry, conference or any other method deemed suitable
62. 62 Investigative Determination •Based on all the evidence collected by the investigator, the Regional Director will make a determination as to whether there is probable cause to believe that discrimination occurred. •If the Regional Director determines that there is no probable cause to believe that discrimination occurred, the complaint is dismissed and the Complainant may appeal the dismissal to state court. •If there is a determination of probable cause, the case is forwarded for a public hearing before an Administrative Law Judge.
63. 63 Public Hearing •At the public hearing before an Administrative Law Judge, material issues of fact and law can be resolved, testimony is taken under oath, witnesses are subject to cross- examination and a full record is made. •Complainant may be represented by their own attorney, or a Division attorney will be appointed to present the case in support of the complaint. •The Administrative Law Judge submits a Recommended Order for the Commissioner’s consideration.
64. 64 Final Orders and Remedies • The Commissioner reviews all submissions, relevant evidence and the Recommended Order, and issues a Final Order either finding discrimination or dismissing the Complaint. • Where the Commissioner finds that discrimination has 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.
65. 65 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.
66. 66 Resources •Know Your Rights: A guide for the LGBTQ+ community on NYS Human Rights Law •Available on https://dhr.ny.gov/lgbtq
67. 67 Resources • Discrimination Based on Sexual Orientation https://dhr.ny.gov/sites/default/files/pdf/DHR-sexual-orientation-discrimination.pdf • Discrimination Based on Gender Identity or Expression https://dhr.ny.gov/sites/default/files/pdf/DHR-gender-identity-brochure.pdf • Gender Identity Discrimination by Hospitals https://dhr.ny.gov/sites/default/files/pdf/DHR_Gender_Identity_Handout.pdf
68. 68 2020 Census: New York Counts On You. Fill It Out For Your Future. •New Yorkers' fair share of federal funds for programs essential to health care, education, housing, economic development and transportation, as well as our congressional representation in Washington, all depends on an accurate and fully-counted census response. •Visit ny.gov/census to learn more on how to respond to the 2020 census. •Visit 2020census.gov to respond online to the census.
69. 69 Upcoming Event – July 9, 2020 • On July 9th, we'll have a Zoom panel discussion on the long struggle for Black civil rights in this country. • The discussion will focus on the anniversary of the 14th Amendment’s ratification, Juneteenth, the Civil Rights Act, and reflect on the role the NYS Human Rights Law will continue to play in this movement.
70. 70 Upcoming Know Your Rights Tour •GENDA Know Your Rights tour will resume in the coming months. •The tour will likely be virtual based on DOH guidance. •This statewide tour will be a series of regional presentations for the LGBTQ+ community and beyond.
71. 71 DHR Pride Month on Social Media
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