NYC Expands Definition of "Sexual Orientation" for Employment Discrimination Purposes

New York, and in particular New York City, has long been at the forefront of protecting LGBT residents from employment discrimination. New York City's Human Rights Law (NYCHRL) already prohibits employers from discriminating against an employee on the basis of sex or gender. The New York City Council recently decided to further clarify the law, broadening the scope of the terms “sexual orientation” and “gender.”

Expanding the Gender Continuum to Include Asexuals, Pansexuals

The existing NYCHRL defines sexual orientation to include “heterosexuality, homosexuality or bisexuality.” No employer in New York City can discriminate against an employee based on any of these orientations. Nor can they discriminate based on gender, which is presently defined as a person's “actual or perceived sex” or their “gender identity, self-image, appearance, behavior or expression.” Essentially, an employer cannot refuse to hire you or treat you differently from other employees because your behavior does not conform to traditional gender stereotypes or expectations.

Int 1186-2016, the law recently passed by the Council, modifies the definitions of sexual orientation and gender to reflect a more nuanced view. Rather than limiting individuals to binary categories–gay, straight, or bisexual–Int. 1186 recognizes “asexuality” and “pansexuality” as legally protected sexual orientations. Asexuality refers to a lack of sexual attraction to others, while pansexuals are romantically attracted to people regardless of their sexual orientation or gender identity.

The City Council's Committee on Civil Rights noted in a report on Int 1186 that psychologists now believe that “sexual orientation ranges along a continuum, from exclusive attraction to the other sex to exclusive attraction to the same sex.” Indeed, Lauren T. Betters, an attorney with the Gender Equality Law Center in New York, testified at a June 2017 hearing on Int 1186 that while gender “may begin with the assignment of our sex, it does not end there.” While society and the law traditionally “view sex and gender as a binary concept, this fails to capture even the biological aspects of gender, let alone gender identity.”

To that end, Int 1186 amends the definition of gender in the NYCHRL to refer to not just “gender identity” but also “gender expression including a person’s actual or perceived gender-related self-image, appearance, behavior, expression, or other gender-related characteristic, regardless of the sex assigned to that person at birth.”

Have You Been the Victim of Sex or Gender Discrimination?

Int 1186 does not impose any new obligations on New York City employers. Rather, it simply clarifies the scope of existing law to accurately reflect the City's growing gender diversity. All employers must ensure not only that they do not directly discriminate against an employee based on gender identity or gender expression, but also that they are not the victims of a hostile work environment at the hands of supervisors or co-workers.

The revised definitions provided in Int 1186 do not take final effect until May 2018. Even during this transitional period, if you experienced any form of discrimination or harassment at work based on sex or gender, you should seek immediate assistance from a qualified New York employment attorney. Call Nisar Law Group, P.C. today at 646.760.6493 if you need to speak someone today.

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