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good morning and welcome to learning Thursdays my name is Krystle Hewitt Gil with the Oasis Learning & Development unit and your host for today's presentation today's presentation is titled New York State human rights law gender rights and our presenter today is John harrion John will be joining us in just a moment but first a word about learning Thursdays learning Thursdays are offered to behavioral health professionals as a free learning opportunity with the goal of improving the knowledge and skills of the New York State substance use disorder workforce as we strive to improve the lives of individuals needing prevention treatment and recovery services a goal of learning Thursdays is to support the professional development of the treatment prevention and recovery workforce we do this by offering free and regular presentations that are relevant to today's substance use disorder treatment professional as always if there are any questions comments or suggestions please feel free to contact us at the Learning Thursday's mailbox you can use the same mailbox to express an interest in providing a future learning thursday's program and now it's time to start the presentation welcome to our presenter John harrion thank you very much crystal I would like to thank the New York State Office of alcoholism and substance abuse services for giving us this opportunity to present today my name is John Harry and I'm the director of disability rights for the New York State Division of Human Rights the New York State Division of Human Rights enforces the New York State human rights law which prohibits discrimination and a wide variety of protected classes today we're going to focus on gender identity as a protected class and we're going to be covering how come or okay there we go we're going to be covering jurisdiction the areas of jurisdiction the state Human Rights law has over employers over housing providers over owners of places of public accommodation we're going to be talking about the protections that exist on the basis of gender identity or expression we're going to have some cases and examples of complaints that were investigated and prosecuted and adjudicated at the Division of Human Rights that addressed gender identity and lastly we're going to talk about enforce and how the New York State Division of Human Rights investigates and enforces complaints how complaints can be filed and then the remedies that are at the disposal of the New York State Division of Human Rights to stop the discrimination and to compensate an individual who's experienced discrimination there are a variety of protected classes under the state Human Rights law sexual orientation gender identity or expression race color familial status national origin creed sex age and disability are also covered under our law presently race and disability make up the majority of our cases but as new protected classes get added such as gender identity we see complaints coming in for us to investigate in those areas as well other protected classes include marital status military status predisposing genetic characteristics favorably resolved arrest records youthful offender status sealed records prior conviction records domestic violence victim status pregnancy related conditions and retaliation another area that's been recently added that I'll speak about in a moment is source of income so in areas of housing housing discrimination landlords are no longer or may not discriminate on the basis of an individual source of income that they use to pay their rent or pay for their housing accommodation and that's a new area that was added to our law just this year wanted to talk about gender identity and sexual orientation there are two separate protected classes under the state human rights law they're not lumped together necessarily so I wanted to define each as they as they're defined in the statutes within the state Human Rights law so when we're talking about sexual orientation as a protected class that's defined to mean heterosexuality homosexuality bisexuality or asexuality whether it's actual or perceived gender identity expression is defined in the new law as meaning an individual'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 our major areas of jurisdiction are employment over 85 percent of the cases that we get at our agency include allegations of discrimination against an employer we also cover housing and on the slide there you'll see that source of income is now covered as of April of 2019 as a protected class places that are open to the public places of public accommodation are covered under our law as well as non-religious educational institutions and providers of credit are also prohibited from discriminating against somebody in providing credit we cover all employers whether they be private or public we cover relatively small employers here in New York State employers with four or more employees are covered under our law and a recent distinction in the area of sexual harassment would include an employer of only one employee and that speaks to an area of where a domestic worker might be working solely for a household providing domestic care that individual should not be subject to any form of sexual harassment under the state human rights law and if that were to occur they could file a complaint for our office to investigate and prosecute and we also cover interns in the areas of the area of employment what's prohibited well you can't discriminate in the hiring or firing or terms of compensation based upon one's gender identity or one's membership in one of the protected classes we mentioned earlier you can't discriminate in the terms or conditions or privileges of employment including reasonable accommodation and I'm going to talk about what reasonable accommodation means momentarily what that means essentially is that it doesn't have to raise itself to the level of a firing or a denial of a job opportunity because of one's gender identity it can be the terms or conditions of their employment and I'm going to speak about a case later on where somebody who was transgender in from male to female and was starting to wear makeup was wearing tank tops and bras female accessories was told not to wear you know that kind of clothing not to wear makeup told to go home and get and not come back so not necessarily a termination there but the terms and conditions of that individuals employment were being adversely handled by the employer based upon that individual's gender identity and that's unlawful harassment also is is prohibited under the state human rights law and any type of advertising or applications that are designed to limit or discriminate against somebody because of their gender identity or because of their membership in a protected class are also prohibited mentioned reasonable accommodation earlier reasonable accommodation applies to individuals with disabilities under the state human rights law so somebody who's transgender undergoing surgical or medical or healthcare treatment somebody may be experiencing gender dysphoria which is considered a disability under the state human rights law those individuals are entitled to reasonable accommodations in order for them to continue to do the job and a reasonable accommodation can be a change in policy or procedure and the idea there is to remove an impediment that's being caused by the disability in order to allow an individual to continue to to be remain employed and to do their job different types of examples of reasonable accommodation can be providing an accessible worksite it can be providing some form of assistive technology to allow an individual to communicate use computers software etc it can mean support services people have visual or hearing impairments and it can also mean job restructuring or modifying a work schedule so if somebody's getting treated for gender dysphoria or somebody's getting medical care or surgical care in terms of their transgender accommodation in the form of time off to recover so long as it's reasonable would be contemplated as being required by the state human rights law we also cover housing and point well employment is the highest volume of cases we get housing comes in solidly at number two we cover private or publicly assisted housing there'd be a Housing Authority or a private landlord there all covered rentals coops condos or covered by our law sales of single family homes are covered land commercial space very broadly covered the definition of a housing accommodation of the state human rights law is very broad and generous there's a minor exemption or exclusion for an owner-occupied to family home that would be excluded from the from the requirements of the state human rights law what's prohibited fairly straightforward you can't refuse to sell or rent or lease a housing accommodation because of one's gender identity or because of one's membership in a protected class you can't discriminate in the terms or conditions of owning a home so again similar to employment it doesn't have to raise itself to the level of termination or raise itself to the level of of evicting somebody or denying someone a housing opportunity it can mean a landlord who's withholding repairs or not providing heat or hot water and our investigators when they get a complaint we have a housing unit a unit that's dedicated to housing investigations these investigators will ask other tenants they can see comparative data and they can interview other tenants who reside at the housing accommodation to ask whether or not they're getting heat or hot water or whether or not their repairs are being made and if it's if it's the case that the landlord is just terrible to everybody and it's not providing heat or hot water that may be one thing it's not discrimination but it may fall within another agency's purview to handle that but if we find out that it's the family that has the child who is transgender that they're being refused heater hot water or not getting their repairs in a timely way that's lending itself to unlawful discrimination so again the terms and conditions of one's ownership or rental of a home are also included in their protections that exist in a state human rights law harassment also covered being harassed because of your gender identity or membership in a protected class is prohibited and any type of applications or advertising for housing or rentals that include limitations or indirect or direct forms of this criminais ssin or discriminatory inquiries are prohibited or in the alternative including a preference for certain types of tenants may also be unlawful under the state human rights law places of public accommodation places that are open to the public in the state of New York are covered under our law again very generously defined you'll see a list of them there on the slide different types of public accommodations that are included hotels restaurants bars theaters medical care providers hospitals and clinics are covered under our law very broadly defined establishments dealing with goods and services of any kind - regardless of size can be covered as places of public accommodation under the state human rights law and public halls and public areas of buildings also state and local government entities are covered under the state human rights law as places of public accommodation what's prohibited you can't discriminate against persons because of their membership in a protected class and that would include the owner or a manager or staff person agent or employee of the place cannot engage in that kind of conduct you can't deny services or goods or facilities based upon one's gender identity somebody who's coming in to use your facilities we're not going to allow you in because of your gender identity would clearly be prohibited under our law similar to employment and housing you can't provide any kind of notices or advertisements that a place is not available a place that's open to the public is not available to individuals because of their membership in a protected class or because of their gender identity and any other type of director even indirect indications that a person in a protected class would be unwelcome is also unlawful and prohibited under the state human rights law a case that we had before our agency that went up to the Appellate Division and was affirmed by the Appellate Division our agency determination was affirmed by the Appellate Division involved Liberty Ridge farm and in that case it was a same-sex couple they were looking to to have their wedding held at Liberty Ridge which was a place of public accommodation they would provide a premises and services and goods for couples who wanted to have both the ceremony and the reception at that facility and when the owners of the Liberty Ridge came to understood or came to understand that this couple was a same-sex couple they they told them though we're not going to we're not going to allow you to hold your wedding ceremony here and in that case their proffered defense was that because of our religious beliefs we're not discriminating this is something that's in accordance with our religious beliefs that we don't want to allow this couple to to come and have their wedding here that reason was considered not to have any merit under the state human rights law and both the commissioner both the agency the division of human rights and the Appellate Division found that respondents in that instance had discriminated against this couple based upon their sexual orientation and awarded $3,000 in damages and a civil penalty was also awarded in terms of a fine of $10,000 so while that was a sexual orientation case and not necessarily gender identity there certainly would be a tie in saying that if a place that was open to the public based upon their religious convictions was going to deny somebody a service or goods because of their gender identity that also following the case law precedent set here relying on one's religious convictions to say that's the reason I'm not allowing you to come in would not be sufficient against the claim of discrimination filed under the state human rights law based on gender identity or sexual orientation or other protected classes for that matter let's talk a little bit more specifically about the protections that exist for gender identity or expression under the state human rights law so in January of this year our law was amended to explicitly add gender identity or expression as an explicitly covered category previously gender identity was covered but it was covered either under sexual orientation or disability and people with gender identity issues people who are transgender anat consider themselves disabled or should not consider themselves disabled or may not consider themselves homosexual or bisexual or asexual which is the areas covered or sexual orientation so this amendment to our law clarified that gender identity in and of itself can be explicitly covered as a protected class we mentioned this earlier but again just to emphasize or re-emphasize what gender identity or expression is under our law it's defined as a person's actual or perceived gender related identity their appearance their behavior expression or other gender related characteristics regardless of sex assigned to them at their birth including but not limited to the status of being transgender is what we're talking about when we're talking about the definition of gender identity under the state human rights law what's unlawful unlawful discrimination can include asking questions about gender identity or expression during a job or housing interview you know job interview should be restricted to your qualifications your background what's necessary why you're the best candidate for the job you know enquiries about gender identity or sexual orientation or disability are all prohibited under the state human rights law you can't refuse to hire or rent an apartment or allow access to credit or access to a place of public accommodation or school because of gender identity again you can't terminate you can't refuse housing on account of one's gender identity you can't deny the use of restrooms or other facilities consistent with a person's gender identity nor can you force a transgender person to use a single occupancy restroom because of someone else's concerns continuing so you can't you you are prohibited from requiring an individual to show medical or other documents in order to use facilities such as restrooms or locker rooms or facilities that are consistent with the gender identity you can't require grooming or uniform or appearance standards I'm going to talk about a case coming up that address that based on gender identity you can't provide it's or leave or accommodations based on gender that differ from those that you would provide to somebody who who is not associated with gender identity or is not fit within one of the membership of the protected classes you can't treat people differently whether it's access to employment access to housing access to places of public accommodation because of their membership in a protected class you also cannot refuse to use an individual's name or pronoun if that's been requested as part of their gender identity gender dysphoria is covered under the state human rights law and while gender identity is in and of itself for protected class conditions that are associated with gender identity such as gender dysphoria if one is is undergoing that or temporary disabilities that result from medical procedures related to gender change can also be covered as disabilities under the state human rights law I mentioned earlier disability is a protected class under our law and persons with disabilities are entitled to reasonable accommodation accommodations under the state human rights law so again somebody who is undergoing medical care or surgical care and needs a reasonable accommodation a modified work schedule in order to get the treatment they need and and continue to do their job those that can be a forum or an example of a reasonable accommodation that's required or obligated under the state human rights law a case that we had before the agency that kind of Illustrated a lot of the protections and coverages I've spoken about today is fuller V advanced discovery in that case the individual was a mechanic when she was hired she identified as a male her name her name was Edward at that time when she was hired but while during the term of her employment with advanced discovery she began to transgender and also was experiencing gender dysphoria so as a part of that she began to wear makeup began to wear tank tops and bras to work and there was an episode where it was a very hot day this individual was a mechanic they weren't working you know garage without air-conditioning and a lot of the male mechanics were taking their their overalls or their they're protected you know the uniform off because it was so hot and they weren't working in there and their tank tops or t-shirts because of the heat and this individual did the same but she was wearing a bra underneath and had makeup and jewelry on and she was told to either cover up or go home while her male colleagues were allowed to continue to cool off and and and you know Walter their their uniforms accordingly a couple of other things also happened in that case where the individual asked the employer to refer to her as Aaron her name was no longer Edward her employer refused to do that and lastly towards the end of her employment she provided medical information letters from her doctor to say that she was no longer male that she was female and that her paycheck should should identify her as Aaron that's the identity the gender identity she identified with and the employer refused to do that and then subsequently terminated this individual so in that case complainant was awarded back pay for the amount of time she missed from the job from when she was fired she was also allowed awarded mental anguish damages a civil fine of $20,000 was ordered by the state Division of Human Rights in this case and all of that was affirmed in its entirety by the Appellate Division so that was upheld as well in in state court another case that came before the agency commissioner found that the employer was liable for sex and the spend disability discrimination as well as gender identity discrimination when a terminated complainants employment because of gender dysphoria and again back pay was awarded in the in that case and compensatory damages of $20,000 were awarded so some of these cases can involve significant compensatory issues for an employer you know whether it be back pay to pay them for the time they were unlawfully away from their job compensating them for the emotional pain and anguish they've suffered because of the lost their job due to their gender identity is also it can also be awarded in terms of the remedies that are available to the agency and in addition you know if it's a really egregious case and some of these were considered to be so civil fines and penalties can also be assessed so there's a lot in the way of teeth in the law to address these issues when they become when they come before the agency lastly I want to talk a little bit about how the agency enforces the state human rights law what's involved in filing a complaint how investigations unfold and how some of the cases are adjudicated so we have regional offices around the state I'll have a slide later that will include resources that are available but we have offices located upstate downstate that investigate complaints that do complaint intake that prosecute complaints that have received probable cause determination we have complaint forms available on our website which is they're listed on the slide wwth rny govt if you're going to file a complaint with our agency you've experienced some form of discrimination you've been denied an employment opportunity because of your gender identity or denied housing because of that you have up to one year to come to our agency to file that complaint if you've missed that window you're outside of the year something happened you know a year and a half or two years ago you still have up to three years to go in a state Supreme Court to file a complaint if in case you have indeed missed that one-year time frame you could file a complaint in either either with the division of Human Rights or in state court you cannot do both and the human rights law does require that the complaints be investigated promptly to determine whether or not if the complainant was discriminated against because of their membership in a protected class our investigators have up to 180 days to complete these investigations and I'm proud to say that we are we are hitting that mark and our agency investigators have a wide variety of tools to investigate cases they can do field visits they can do site visits you know they can visit a housing an apartment or housing accommodation to see what's going on they can interview witnesses they can gather any type of written you know emails documents that pertain to the complaint so they have a wide variety of methods available to conduct their investigations including that comparative data I mentioned earlier when we're talking about housing cases where they can speak to other tenants who reside there to find out what's going on once the investigation has gathered all this information conducted interviews they are then tasked with making a determination of whether or not probable cause or no probable cause exists in the case and the regional director of each office then signs off on that that's reviews and then signs off on that determination so probable cause means there's enough there to credit the complainants allegations to move the case forward to have it assigned to a prosecutor no probable cause would mean that there's just not enough there to credit those allegations if the if there's a determination that no probable cause exists the complaint is then dismissed the complaint the complainant can appeal that dismissal to state court so there's another opportunity there for review if the complainant believes that that no probable cause determination was not merited if there's a termination of probable cause again the case then gets assigned to our prosecutions unit to go for a public hearing before administrative law judge so the agency really is set up as a user-friendly alternative to the state court system there's no fee to file the complaint you know if you go in a state court or federal court if there's filing fees there's no need to have an attorney if you're again if you're going into court you really should have a lawyer representing you but if you come to our agency it's very easy to download and file the complaint and again if you get a probable cause determination that case can get assigned to our prosecutions unit which is staffed with attorneys who are responsible for prosecuting these cases so an attorney can be assigned to a case that you've bought before the agency that's received a probable cause determination at the public hearing once that probable cause determination has been made and has been assigned to a prosecuting attorney then we'll go in front of administrative law judge where there's a hearing direct examination cross-examination exhibits can be entered testimony taken under oath all of the things that you would you know see familiar with with with a case in court also exists before our administrative law judges in terms of the public hearings that they preside over I mentioned earlier we have a prosecution's unit some complainants do bring their own counsel and that's fine they can be represented by their own counsel and then the administrative law judge is responsible for submitting a recommended order to the divisions commissioner for for her consideration the commissioner is then responsible for reviewing the recommended order looking at the relevant evidence and then issues a final order either finding discrimination or perhaps dismissing the complaint if there is a finding of discrimination again there's a wide variety of remedies available that our agency can enforce including reinstatement with back pay it can be it can mean require requiring a housing provider to to rent or at least the the premises that was otherwise unlawfully refused compensation we spoke about for mental anguish or suffering associated with being discriminated against in order to require the the ceasing and termination of whatever discrimination was was that was undertaken requirement for training oftentimes will require employers or housing providers to be trained to understand what their obligations are under the state human rights law so this conduct does not occur again and lastly civil fines and penalties again are available in cases where there's an egregious form of discrimination taking place in terms of appeals either side can appeal a commissioners final order those appeals can be brought before state court where the cases are heard and Appellate Division again complaining can have private counsel to proceed or we may have our prosecuting attorney from the division submit any type of briefs or legal documents and appear in court to defend the the agencies order the divisions order where discrimination was found to have curd we can also seeks court enforcement if there is a failure by respondent to comply with the terms of the order some of the resources I wanted to share with you or on this next side we have some publications and literature available on our website that speak to sexual orientation that speak to gender identity or expression and it also specifically speaks to gender identity discrimination by hospitals and those links are available on this slide and available on our website as well if you want to contact our agency afterwards if you have questions we have an 88 8 number that's there one eight eight eight three nine two three six four four we also have an email address where you can submit enquiries which is info at DHR dot n y dot govt lastly I'm the agency's director of disability rights my contact information is available on this slide as well my email is john dot harrion h e RR io n @d h RN y dot govt my direct phone number is seven one eight seven four one eight three three two we have some social media going on at the agency we have a twitter handle there an Instagram account our Facebook account is there as well and we are now also sharing a newsletter so anybody who's interested whether it's staff from Oasis or other individuals that Oasis serves if they're interested in signing up for a newsletter and seeing what our agency is up to we encourage that as well so I want to thank you all for the time thank you - Oh ASA for giving me the opportunity to present and thanks very much I want to thank John harrion and the division of Human Rights for this very informative and timely presentation and now if I can turn your attention your feedback is important to us it helps us to know if we are meeting your educational goals and expectations once you have viewed the presentation in its and priority and completed the quiz please follow directions to access the Survey Monkey website and take a moment to complete the evaluation once again thank you for joining us and keep up the good work