Wednesday, March 6, 2019

New Discrimination Laws Take Effect in New York and Portland

The trend of location specific employment laws is continuing. A new discrimination law and guidance have taken effect, respectively, in the state of New York and New York City, and a new discrimination law will take effect next month in the city of Portland, Oregon. Employers with multijurisdictional operations should continue to monitor location specific developments that may affect their operations.

New York’s Gender Expression Non-Discrimination Act

Employers with New York operations should take heed of New York’s Gender Expression Non-Discrimination Act (GENDA), which took effect on February 24, 2019. GENDA prohibits employment discrimination on the basis of “gender identity or expression.” The law defines “gender identity or expression” as “a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.” The New York State Division of Human Rights had previously issued regulations stating that sex discrimination includes discrimination on the basis of gender identity and the status of being transgender. Under GENDA, gender identity or expression is now an explicitly protected characteristic in New York.

New York City’s Guidance on Discrimination Based on Hairstyle

Those with New York operations should also be aware of a new legal enforcement guidance released by the New York City Commission on Human Rights in February 2019. The guidance advised employers that the New York City Human Rights Law protects the rights of New Yorkers to “maintain natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities.” Under the guidance, covered employers that “enact grooming or appearance policies that ban or require the alteration of natural hair or hair styled into twists, braids, cornrows, Afros, Bantu knots, fades, and/or locks may face liability” under New York city law, because such policies “subject Black employees to disparate treatment.” The guidance does not prohibit workplace rules related to legitimate health and safety concerns, such as the wearing of hairnets by those preparing food. The guidance provides, however, that employers should seek methods to address these types of concerns other than, as a last resort, placing restrictions on hairstyles.

Employers not subject to the New York City guidance may still find the guidance helpful in connection with any grooming or appearance policies. Title VII and many other state and local laws prohibit race, religion, and national origin discrimination. As such, overly broad grooming or appearance policies can implicate discrimination prohibitions outside of New York City.

Portland, Oregon’s Law on Discrimination against Atheists and Agnostics

Employers with Portland, Oregon operations will soon be subject to more extensive religious discrimination prohibitions. An amendment to Portland’s ordinance Code will, effective March 29, 2019, broaden the definition of “religion” as a protected characteristic to explicitly include “non-religion, such as atheism, agnosticism, and non-belief in God or gods as has been recognized by the courts.”

Compliance Steps

Employers with employees in New York state, New York City, or Portland, Oregon should review and update policies and practices, as needed, to ensure compliance with the new laws and guidance described above. For other employers, stay tuned for any new local legal developments affecting your operations.

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