One of the big stories of the moment is Caitlyn Jenner. From an employer’s prospective, Caitlyn Jenner's story is a useful reminder that transgender persons may have certain legal rights related to their employment. It is also a reminder that employers have legal obligations not to discriminate against other individuals in various protected categories and different jurisdictions identify different categories for protection.
As a general rule, employers should foster a workplace free from discrimination and harassment. Such misconduct must not be tolerated and, if it occurs, it must be immediately remedied. Conduct by supervisors may be attributed to the employer. Employers may also be liable for conduct by co-workers if the employer was aware of the conduct. Employers should train employees and managers alike about the equal employment opportunity laws and the various protected categories in particular jurisdictions. Handbooks and policies alone will not insulate employers from lawsuits.
Federal employment law provides a base of eight protected categories (race, religion, sex, national origin, age, disability, genetic information and military status).1 The number of protected categories tends to increase as the geographic size of the jurisdiction decreases. Thus, New York State has 12 protected categories: age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status and domestic violence victim status.2 New York City has even more protected categories, which include subcategories: race, creed, color, age, national origin, alienage or citizen status, gender (expressly including gender identity), sexual orientation, disability, marital status and partnership status, arrest or conviction record, status as a victim of domestic violence, stalking and sex offenses, and unemployment status.3
Understanding the law in the jurisdiction in which you do business is important. To be subject to many of the federal anti-discrimination laws, an employer must employ 15 or more individuals. The New York State and New York City Human Rights Laws require four or more employees before an employer is covered. The specific law may have significant consequences relative to potential damages. As an example, the New York State Human Rights Law provides recovery for only compensatory and economic damages. On the other hand, many of the federal anti-discrimination laws and the New York City Human Rights Law allow for punitive damages and recovery of attorney’s fees — factors that may greatly increase potential liability for violations.
We recommend that you ensure that your practice, office or facility is up to date. Merely being aware of the list of protected categories in your jurisdiction is not enough. Frequently, case law interprets the law in ways that expand upon protected categories. Thus, it is important to speak with employment counsel about changes and updates to the law. We suggest that your employment counsel review your handbooks and equal employment policies to ensure they contain comprehensive listings of the applicable protected categories for your jurisdiction, along with other appropriate policies, such as equal employment and complaint procedures. We also recommend regular supervisor and employee training.
Gregory B. Reilly is a Partner and Head of Martin Clearwater & Bell LLP’s Employment & Labor Practice Group. Greg is an experienced litigator and counselor with more than 20 years of experience in a variety of fields, including health care, hospitality, staffing and retail. For more information, contact firstname.lastname@example.org.
Adam G. Guttell is a Partner in Martin Clearwater & Bell LLP’s Employment & Labor Practice Group. Adam has extensive experience advising employers of all sizes in diverse industries including health care, finance, manufacturing and hospitality. For more information, contact email@example.com.
- Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); The Age Discrimination in Employment Act (29 U.S.C. 621 et seq.); The Americans with Disabilities Act (42 U.S.C. 12101 et seq.); The Genetic Information Nondiscrimination Act of 2008; Uniformed Services Employment and Reemployment Rights Act (38 U.S.C. 4301-4335).
- New York State Executive Law §296.
- Administrative Code of the City of New York §8-101 et seq.