Barclay Damon
Barclay Damon

Legal Alert

State and Federal Agencies Ramp Up Efforts to Combat Sex-Based Discrimination and Harassment

The NYS Division of Human Rights (NYSDHR) and the US Equal Employment Opportunity Commission (EEOC) continue to take steps to combat unlawful sex-based discrimination and harassment, particularly gender-identity discrimination and sexual harassment.

The NYSDHR recently announced the publication of a brochure titled “Protections Against Gender-Identity Discrimination,” which details the protections afforded to transgender individuals under the NYS Human Rights Law (NYSHRL). The NYSDHR’s news release also referenced two additional, related publications: “Discrimination Based on Sexual Orientation” and “Gender-Identity Discrimination by Hospitals.”

The NYSHRL prohibits sex and disability discrimination in housing, employment, public accommodations, and credit transactions and in private, non-religious schools. The term “sex” includes gender identity and the status of being transgender, and gender dysphoria and related conditions are considered medical conditions that fall within the definition of disability under the NYSHRL.

Gender identity means “having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person.”

The NYSDHR brochure lists several examples of unlawful discrimination on the grounds of gender identity, including:

  • Asking questions about gender identity, such as in a job or housing interview.
  • Refusing to hire for a job.
  • Refusing to rent an apartment to an individual or refusing to allow equal access to credit or public accommodations.
  • Terminating employment or housing.
  • Applying different terms or conditions of employment, credit, a lease, or service in a public establishment.
  • Denying the use of restrooms or other facilities consistent with a person’s gender identity.

In connection with the NYSDHR’s news release, Commissioner Helen Diane Foster stated, “[H]arassment because of a person’s gender identity or the status of being transgender is sex harassment, plain and simple. All public and private employers, housing providers, businesses, creditors, and others should know that discrimination against transgender persons is unlawful and will not be tolerated anywhere in the State of New York.”

If the NYSDHR determines there is probable cause to believe harassment or discrimination has occurred, the commissioner will decide the case after a public hearing and may award job, housing, or other benefits; back and front pay; compensatory damages for mental anguish; and civil fines and penalties, and may also require policy changes and training as appropriate. Civil fines and penalties can be up to $50,000 or up to $100,000 if the discrimination is found be “willful, wanton, or malicious,” and, unlike under federal law, compensatory damages to individuals are not capped.

On a related front, the EEOC, which interprets and enforces federal law prohibiting sex discrimination based on gender identity or sexual orientation, recently announced preliminary sexual harassment data highlighting its enforcement efforts as well as a spike in sexual harassment claims in the wake of the #MeToo movement.

The preliminary data for fiscal year 2018 shows:

  • The EEOC filed 66 harassment lawsuits, including 41 that included allegations of sexual harassment. This reflects more than a 50 percent increase in lawsuits challenging sexual harassment over fiscal year 2017.
  • Charges filed with the EEOC alleging sexual harassment increased by more than 12 percent from fiscal year 2017.
  • The EEOC recovered nearly $70 million for victims of sexual harassment through litigation and administrative enforcement, up from $47.5 million in fiscal year 2017.

In the EEOC news release, Acting EEOC Chair Victoria Lipnic stated, “I am so proud of the EEOC staff who stepped up the heightened demand of the #MeToo movement to make clear that workplace harassment is not only unlawful, it is simply not acceptable . . . As the agency with the expertise, as the enforcer of the law, and as an educator, the EEOC has continued to lead the way to achieve the goal of reducing the level of harassment and to promote harassment-free workplaces.”

For more information about the EEOC and its recent efforts to prevent workplace harassment, click here.


If you have any questions regarding the content of this alert, please contact Rob Thorpe, associate, at rthorpe@barclaydamon.com, or another member of the firm’s Labor & Employment Practice Area.