New York Extends Anti-Discrimination Statute to Cover Gender Identity

January 23, 2019 at 8:47 am 1 comment

One of the first acts of the unified democratic majority was to pass a bill amending New York law to ban discrimination on the basis of “gender identity or expression.” You should make sure your HR person updates your anti-discrimination policy to incorporate this new prohibition.

What is gender identity or expression? A new section 292(35) of New York’s Executive law defines it 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.” Remember that as lending institutions, the bill has particular importance since it also bans discriminatory lending practices based on an applicant’s gender expression.

This is certainly a development I would discuss with your HR attorney. For example, in addition to simply updating your anti-discrimination policy, I would want to know what additional training your employees may need   and what accommodations, if any,  should be made? Obviously it is best to address these issues before they arise. The parts of the legislation directly impacting your credit union take effect 30 days after the legislation is signed by the Governor.

Remember: Your Employees Have Whistleblower Protections

Here is a trivia question for all you compliance people out there. What section of the Federal Credit Union Act provides whistleblower protection to employees who alert NCUA to perceived misconduct by their credit union? The answer is 12 USC 1790b. The reason why I’m asking this question is because a federal court in North Carolina recently ruled that a suit by a fired credit union CEO alleging that she was fired after bringing concerns about the Board’s conduct to NCUA’s attention was decided. The court ruled that the case could go forward. There aren’t many cases dealing with this issue so it’s worth being aware of particularly if your board gets involved with a contentious employment situation.

Most importantly, to establish a violation of this section, a plaintiff must show that she engaged in protected activity; that her employer took an adverse action against her and that one of the reasons the employer did so was because she engaged in the protected activity. In the case of 1790b, such protected activity would include informing the NCUA of alleged misconduct provided there was a good-faith basis for believing that the credit union is violating law or regulation. The court also implicitly recognized a requirement that the employee inform the board of its concerns. In this case, the court refused to dismiss the lawsuit where the employee provided evidence that the board routinely ignored regulations and also that she had put the board on notice about her concerns.

That’s it from Albany for today, where your faithful blogger can now inform you that 25 degrees can feel like a heat wave under the right conditions.

Entry filed under: HR, Legal Watch, New York State. Tags: , .

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1 Comment Add your own

  • 1. Henry Meier  |  January 23, 2019 at 10:51 am

    Yup-I am on it

    Reply

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Authored By:

Henry Meier, Esq., Senior Vice President, General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association. In addition, although Henry strives to give his readers useful and accurate information on a broad range of subjects, many of which involve legal disputes, his views are not a substitute for legal advise from retained counsel.

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