Gender Self-ID Rules at the State and Local Level
With growing awareness of protections against gender-based discrimination in the workplace, employers may see more applicants and employees request to be identified with a preferred gender and/or pronoun, including gender-neutral pronouns. Employers may also wonder whether they can proactively ask employees to self-identify their gender. Some states and local jurisdictions have begun to address these questions with their own rules that may go beyond federal law. Here are two examples:
California's Fair Employment and Housing Act (FEHA) prohibits harassment and discrimination because of sex, gender, gender identity, gender expression and certain other characteristics. The discrimination provisions cover employers with five or more employees, but the harassment provisions cover all employers.
Preferred Gender, Pronoun, and Name:
In California, employers must generally abide by an employee's request to be identified with a preferred gender, name, and/or pronoun, including gender-neutral pronouns, according to state regulations. However, if it is necessary to meet a legally mandated obligation, such as a W-2 Form, employers may use an employee's gender or legal name as indicated in a government-issued identification document.
California employers are generally prohibited from making inquiries that directly or indirectly identify an individual on the basis sex, gender, gender identity, or gender expression. Employers are also generally prohibited from inquiring about or requiring documentation or proof of an individual's sex, gender, gender identity, or gender expression as a condition of employment. However, for the purposes of complying with recordkeeping requirements for applicant records under the state's nondiscrimination law, an employer may request an applicant to provide this information but only if it is on a voluntary basis.
Note: The law doesn’t prohibit an employer and employee from communicating about the employee's sex, gender, gender identity, or gender expression when the employee initiates a discussion with the employer regarding the employee's working conditions.
New York City:
The New York City Human Rights Law (NYCHRL) prohibits discrimination and harassment based on gender, which includes actual or perceived sex, gender identity, and gender expression, regardless of the sex assigned to that person at birth. The NYCHRL’s discrimination provisions apply to employers with four or more employees but the gender-based harassment provisions apply to all employers.
Preferred Gender, Pronoun, and Name:
The NYCHRL requires employers to use the name, pronouns, and title (e.g., Ms./Mrs./Mx.) with which an applicant or employee self-identifies, regardless of the person’s sex assigned at birth, anatomy, gender, medical history, or appearance, according to guidance from the city’s Commission on Human Rights.
The guidance also states that individuals have the right to use and have others use their name and pronouns regardless of whether they have identification in that name or have obtained a court-ordered name change, except in very limited circumstances where certain federal, state, or local laws require otherwise (e.g., for purposes of employment eligibility verification with the federal government).
NYCHRL guidance provides that employers may ask an individual in good-faith for their name and gender pronouns. Covered entities may generally avoid violations of the NYCHRL by creating a policy of asking everyone what their gender pronouns are, however, employers should not single out employees to make such inquiries. Instead, employers should update their systems, intake forms, or other questionnaires to give all applicants and employees an opportunity to self-identify their gender. When doing so, employers should avoid limiting the options for self-identification to male and female only.
Employers should review federal, state, and local laws, regulations, and guidance to understand their rights and obligations regarding gender identity and expression.