New York Legislature Adds Gender Identity as Protected Class, While Issue Remains Unclear Under Federal Law

New York Legislature Adds Gender Identity as Protected Class, While Issue Remains Unclear Under Federal Law

January 30, 2019

On January 15, 2019 legislators in New York passed the Gender Non-Discrimination Act (or "GENDA"). GENDA, which had been pending before the state legislature for more than 15 years, was formally signed by Governor Cuomo last week . The law was passed at the same time the Supreme Court considered whether to hear a case which could potentially add the same protections under Title VII.

GENDA adds "Gender Identity and Expression" as a protected class under New York State's Executive Law (specifically, at Article 15 which is commonly referred to as New York’s Human Rights Law), the Civil Rights Law and the Education Law. The addition affords relief to individuals who have been discriminated upon on account of their gender identity, including their transgender status.

GENDA recognizes that gender identity has historically been afforded protections by New York courts as part of the general restriction against sex discrimination. Accordingly, although the legislation marks a historic moment, the immediate impact GENDA will have is unclear, as its passage is arguably more a policy statement than a significant change of the law.

The majority of employment discrimination claims are still brought in federal court under Title VII of the (federal) Civil Rights Act. There, the state law claims are typically bootstrapped to the federal claims as a means of seeking additional remedies. In the case of discrimination on account of gender identity, the script is less clear. 

On January 18, three days after GENDA’s passage, the Supreme Court Justices met to discuss whether to take the case R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. At the heart of that case is the question of whether the word "sex" in Title VII's prohibition on discrimination "because of . . . sex," means "gender identity." The Sixth Circuit Court of Appeals found that it does, and the employer is asking the Supreme Court to overturn that decision. The Harris Funeral Homes case has garnered additional attention due to the contrasting positions taken by various offices of the executive branch, with the EEOC and the Department of Justice taking opposing views on the issue. The Court did not grant certiorari when they would have been expected to do so, but did not deny it either. It seems likely that the Court will allow case law from lower courts to develop further before entering into the issue.

Therefore, the clearest immediate effect of GENDA may be an increase in claims brought in New York State courts, rather than the federal district courts. Individuals alleging discrimination based on gender identity (or sexual orientation) may see no need enter into the complicated fray of the federal issue, and simply bring their claims in state court under state laws. This trend (if it occurs) may lead to new case law concerning the difference between state and federal protection laws affecting all protected classes. Accordingly, GENDA’s historical passage is something that is prone to have direct and indirect effects on a vast number of employers.