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In the Big Apple, Using the Wrong Pronoun Could Cost your Company $250,000

The New York City Commission on Human Rights (the “Commission”), the city agency that enforce anti-discrimination laws, recently issued guidance on discrimination on the basis of gender identity or expression. See https://www1.nyc.gov/site/cchr/law/legal-guidances-gender-identity-expression.page).

The New York City Human Rights Law (“NYCHRL”), among other things, prohibits discrimination in public accommodations, housing and employment on the basis of gender.  Gender is defined as one’s “actual or perceived sex and shall also include a person’s gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance or behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.”

Gender identity is one’s internal deeply-held sense of gender which may be the same or different from one’s sex at birth.  In contrast, gender expression is the representation of gender as expressed through one’s name, choice of pronouns, clothing, haircut, behavior, voice or body characteristics.  Transgender is an adjective used to describe someone whose gender identity or expression is not typically associated with the sex assigned at birth.

The guidance identifies various examples of violations of the NYCHRL’s prohibition on gender discrimination which include:

  • Failing to use an individual’s preferred name or pronoun;
  • Refusing to allow individuals to utilize single-sex facilities and programs consistent with their self-identified gender;
  • Sex stereotyping;
  • Imposing different uniforms or grooming standards based on sex or gender;
  • Providing employee benefits that discriminate based on gender;
  • Considering gender when evaluating requests for accommodations;
  • Engaging in discriminatory harassment; and
  • Engaging in retaliation.

As for pronoun use, the NYCHRL requires employers and covered entities to use an individual’s preferred name, pronoun, and title regardless of the individual’s sex assigned at birth, anatomy, gender, medical history, appearance, or the sex indicated on the individual’s identification.

While most individuals and many transgender people use female or male pronouns and titles, some transgender and gender non-conforming people prefer to use pronouns other than he/him/his or she/her/hers, such as they/them or ze/hir.

“Ze and hir” are popular gender-free pronouns preferred by some transgender and/or gender non-confirming individuals.  Thus, an example of a violation of the NYCHRL is repeated refusal to use an individual’s preferred name, pronoun or title.  This refusal could cost the company big time, as the guidance makes clear it will fine companies for violations of up to $125,000 and $250,000 for willful, wanton, or malicious conduct.  The amount of the penalty is determined by the severity of the violation, the existence of previous or subsequent violations, the employer’s size, and the employer’s actual or constructive knowledge of the NYCHRL.

Aside from the NYCHRL, gender identity is also protected under New York state law, Connecticut state law, New Jersey Law Against Discrimination and many other states. Moreover, the Equal Employment Opportunity Commission, the federal watch dog for anti-discrimination laws, also takes this position.  Thus, even employers outside of New York City should be mindful of these protections and should train managers accordingly.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.