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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Monday, April 2, 2007

NY State Gender Non-Discrimination Legislation

From Autumn Sandeen over at Pam's House Blend, March 16th:

Over in New York, the Gender Expression Non-Discrimination Act (GENDA), which would ban discrimination on the basis of gender identity and expression in New York State, was reintroduced into that Legislature this week --the bill was introduced with a record 53 Assembly sponsors and 9 Senate sponsors.

As reported in The Advocate, Gay.com and PlanetOut.com: "Assemblyman Richard Gottfried and State Sen. Tom Duane, both Manhattan Democrats, re-introduced the bill after failed attempts in 2003 and 2006. The Empire State Pride Agenda has been working closely with Gottfried and Duane for several months. Both chambers will assign bill numbers to the legislation this week. "

The bill summary on the New York Assembly website, where the full text of the bill may also be viewed, notes that the bill defines "gender identity or expression" as "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 at birth; further includes offenses regarding gender identity or expression within the list of offenses subject to treatment as hate crimes." It also notes that there is prior legislative history: A.7438/S.4794-A of 2005-06, which was not passed.

I note that there was a great deal of controversy when SONDA, the New York State Sexual Orientation Non-Discrimination Act, was passed in 2002. Transgender advocates wanted the bill to include gender identity, but the Empire State Pride Agenda and other NY gay advocacy organizations were against it. They promised to lobby for gender identity protection in the future. In the Open Letter from NYAGARA, written in 2002, during the internecine fight over SONDA, the NY Association for Gender Rights Advocacy pointed out the problem for gay employees posed by the failure to include gender identity in the bill, noting the Dawn Dawson case. It also gives an interesting interpretation of the history of SONDA and transgender advocacy in New York.

It's interesting that the NY attorney general says that transgender persons are protected by SONDA when they lose their jobs due to "perceived" sexual orientation. Of course, as readers of this blog know, sexual orientation is different from gender identity, but an employer who discriminates may not realize this, and consider a transgender person to be "gay", regardless of their actual sexual orientation.

Here is the state of the law as viewed by HRC:

NEW YORK

Gender identity protected? In some cases. While gender identity is not explicitly included in the state’s anti-discrimination law, courts have ruled that transsexual individuals can pursue anti-discrimination claims under the category of sex.

Sexual orientation protected? Yes. New York law explicitly prohibits discrimination on the basis of sexual orientation in public and private employment, public accommodations, housing, education and credit. Citations: Rentos v. OCE-Office Systems, 1996 U.S. Dist. LEXIS 19060 (S.D.N.Y. 1996); Buffong v. Castle on the Hudson, 2005 N.Y. Misc. LEXIS 3194 (N.Y. Sup. Ct. 2005); NY EXEC. LAW§ 296, 296-a.

As I have noted previously, new laws of this sort are seen by some as a signal that a community is favorable to a high tech economy, as suggested by the Florida Thesis (no relation to recent events in Florida). There are 7 cities and counties in New York that have enacted such laws prohibiting employment discrimination on the basis of gender identity: Albany, Buffalo, Ithaca, New York City, Rochester, Suffolk County, and Tompkins County.

The following 25 Fortune 1000 corporations in New York have policies prohibiting employment discrimination based on gender identity: Starwood Hotels, Pfizer, Viacom, ITT, CBS, Merrill Lynch, JP Morgan Chase, PepsiCo, Citigroup, North Fork, Lehman Brothers, MetLife, Corning, Moody's, Eastman Kodak, New York Times, Morgan Stanley, Con Ed, Bristol-Myers Squibb, Keyspan, American Express Co., IBM, Estee Lauder, Liz Claiborne, and Goldman Sachs.

The following 24 major New York employers also have such policies: CBS, Deloitte & Touche, Nixon Peabody, Cary Kane LLP, Loehmann's, ITT, HarperCollins, Barclays, gfn.com, Credit Suisse, New York Life, Cadwalader Wickersham & Taft, Con Ed, Ernst & Young, PricewaterhouseCoopers, KPMG, CMP Media, Accenture, Moody's, Deutsche Bank, Goldman Sachs, McKinsey & Co., Bausch & Lomb, and Corning.

I note that the Advocate article says that 86 New York-based companies have such policies, but the above is what I was able to find in HRC's database, and that number totals 49.

There are 68 Fortune 1000 companies in New York that do not have policies against this form of employment discrimination, and would be affected by this bill, if enacted: American Intl. Group, Verizon Communications, Altria Group, Morgan Stanley, Time Warner, Alcoa, TIAA-CREF, News Corp., Amerada Hess, Cendant, Loews, Marsh & McLennan, Bear Stearns, Colgate-Palmolive, Arrow Electronics, Omnicom Group, L-3 Communications, Guardian Life of America, Bank of New York, Avon, ITT Industries, Assurant, IAC/InterActiveCorp, Dover, Interpublic Group, McGraw-Hill, Asbury Automotive Group, Foot Locker, CIT Group, Cablevision Systems, Barnes & Noble, Henry Schein, Constellation Brands, M&T Bank Corp., NTL, CA, Warner Music Group, Polo Ralph Lauren, Jarden, Forest Laboratories, MasterCard, Leucadia National, ETrade Financial, Vornado Realty Trust, Reader's Digest, Tiffany, MBIA, Volt Info Sciences, Scholastic, Systemax, AnnTaylor Stores, National Fuel Gas, Sequa, Intl. Flavors & Frag., Phillips-Van Heusen, Pall, Dow Jones, Symbol Technologies, NBTY, Mutual of America Life, Coach, Jetblue Airways, Ambac Financial Group, Duane Reade, Warnaco Group, Jefferies Group, and Paychex

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