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VOLUME 229—NO. 6 THURSDAY, JANUARY 9, 2003 CorporateUpdate The Non- Act

n Dec. 17, New York state EMPLOYMENT LAW behavior or expression is different from that traditionally associated with the enacted the Sexual Orien- ISSUES tation Non-Discrimination legal sex assigned to that person at Act, or SONDA. The act, birth.”6 Thus, New York City’s law O expressly protects individu- which takes effect on Jan. 17, amends the New York State Human Rights Law als, as do the laws of Suffolk County, to prohibit discrimination based on Rochester, Buffalo, and numerous other actual or perceived sexual orientation in jurisdictions around the country.7 the areas of employment, housing, public Civil Remedies accommodations, education and credit.1 PHILIP M. DEVJANI In enacting SONDA, New York BERKOWITZ MISHRA SONDA entitles a plaintiff claiming becomes the 13th state to prohibit discrimination on the basis of sexual discrimination on the basis of sexual Identity orientation to institute a private action orientation in the private sector, joining for legal and equitable relief under the Despite last-minute efforts to amend , Connecticut, Hawaii, State Human Rights Law.8 However, it SONDA to include protection for Maryland, Massachusetts, Minnesota, should be noted that state law, unlike “ and expression,” the , New Hampshire, , the New York City Human Rights Law, legislation as enacted does not explicitly Rhode Island, Vermont and Wisconsin, does not permit plaintiffs to recover define transgender individuals as a pro- as well as the District of Columbia.2 punitive damages except in cases of tected class. To date, only Minnesota The addition of SONDA to the State housing discrimination.9 In addition, and Rhode Island prohibit discrimina- Human Rights Law has long been whereas the New York City Human tion based on gender identity by statute heralded as a necessary step toward Rights Law authorizes an award of on a statewide basis.4 Although at equal treatment of gays and attorneys’ fees to a prevailing party in a least one federal court has opined that throughout New York State. However, private action, attorneys’ fees are not transgender individuals may be protect- practitioners should be aware of impor- available under the State Human ed under the State Human Rights Law’s tant distinctions between SONDA and Rights Law.10 existing prohibition of “sex” discrimina- the various local anti-discrimination tion, this issue has not been addressed by statutes that predate it.3 Specifically, the Domestic Partnership any New York state court.5 civil rights laws of New York City and In response to this uncertainty, New In enacting SONDA, the State other cities and counties continue to York City amended its Human Rights Legislature explicitly provided that afford greater protection than SONDA Law in April 2002, expanding the “[n]othing in this legislation should be in certain key respects. A number of definition of “gender” to include actual construed to create, add, alter or abolish these distinctions are noted below. and perceived sex, as well as “gender any right to marry that may exist” under Philip M. Berkowitz is a partner and identity, self-image, appearance, behav- federal or state law. New York State has Devjani Mishra is an associate at the New ior or expression, whether or not that thus reserved the issues of domestic York office of Seyfarth Shaw. gender identity, self-image, appearance, partnership, same-sex and civil NEW YORK LAW JOURNAL THURSDAY, JANUARY 9, 2003 unions for another day.11 domestic partnership attesting to the (3) N.Y.C. Admin. Code §8-101 et seq. (4) Minn. Stat. Ann. §363.01 subd. 45; R.I. Gen. Laws Meanwhile, numerous localities have duration and financial interdependence §28-5-6(14) (Supp. 2001). established domestic partner registries, of his or her relationship with a domes- (5) Rentos v. OCE-Office Sys., No. 95 Civ. 7908 (LAP), including New York City, Westchester tic partner.15 1996 U.S. Dist. LEXIS 19060 (S.D.N.Y. Dec. 24, 1996) (declining to dismiss postoperative ’s claim of County, and the cities of Albany, Ithaca Moreover, a number of municipalities, discrimination on the basis of sex under the New York State and Rochester. The benefits available to including , Los Angeles, Human Rights Law and the New York City Human Rights Law). But see Maffei v. Kolaeton Indus Inc., 164 Misc. 2d registered domestic partners vary by Seattle, and Minneapolis, require private 547, 626 N.Y.S.2d 391 (Sup. Ct. N.Y. Co. 1995) (finding jurisdiction. New York City’s domestic employers with whom they contract to that transsexual plaintiff was protected by New York City Human Rights Law’s pre-2002 prohibition of gender dis- partner legislation, for example, provides provide domestic partner benefits. At crimination). registered domestic partners with least one court has upheld such require- (6) N.Y.C. Admin. Code §8-102(23) (2002). visitation rights in city-owned hospitals ments with regard to benefits that are not (7) Suffolk County Resolution No. 802-2001, §2(G) (defining “gender” to mean "both the biological and social and nursing homes, as well as succession covered by ERISA, such as and characteristics of being or male") (2001). The city of rights to apartments under city jurisdic- medical leave and bereavement leave, Rochester forbids discrimination against transgender indi- viduals in public and private sector employment and public tion. In addition, in September 2002, and has observed that a city acting as accommodations. Rochester Mun. Code, Ch. 63 (2001). New York City expanded its definition a market participant has a legitimate The city of Buffalo also prohibits discrimination based on gender identity, but its local ordinance is limited to public of domestic partnership to include same- interest in applying its non-discrimina- sector employment. Buffalo City Code §35-12 (2002). sex or opposite-sex couples that have tion laws to those with whom it (8) N.Y. Exec. Law §297(9). contracts, as long as the city is not (9) Thoreson v. Penthouse Int’l Ltd., 80 N.Y.2d 490, 591 legally registered their status in another N.Y.S.2d 978, 981-82, 606 N.E.2d 1369 (N.Y. 1992); jurisdiction, including couples whose “exercising more power than an ordinary N.Y.C. Admin. Code §8-502(a). otherwise legal partnership is not recog- consumer could exercise.”16 (10) N.Y.C. Admin. Code §8-502(f); McGrath v. Toys “R” Us, Inc., No. CV-01-3071 (CPS), 2002 U.S. Dist. nized by the state of New York.12 In this regard, the New York City LEXIS 22610 (E.D.N.Y. Oct. 16, 2002) (awarding $193,551 Council is currently considering an in attorneys’ fees under the New York City Human Rights Law to prevailing transsexual plaintiffs); New York City Employee Benefits “Equal Benefits Bill,” which would Board of Educ. v. Sears, 83 A.D.2d 959, 960, 442 N.Y.S.2d require companies having contracts 23, 25 (2d Dep’t 1981) (vacating award of attorneys’ fees Although SONDA prohibits employ- with New York City valued at over under the State Human Rights Law). ment discrimination based on sexual (11) Legislation seeking to prohibit same-sex marriage $100,000 to certify that they do not dis- has been introduced in the New York State Legislature orientation, it does not address the issue criminate between employees with annually since 1996, but has failed to advance. of employee benefits. Such benefits are (12) N.Y.C. Admin. Code §§3-240(a) & 3-245 (2002). domestic partners and employees with (13) 29 U.S.C. §301 et seq. regulated by the Employee Retirement in providing benefits.17 Given (14) In the absence of a statewide domestic partnership registry, New York State employees have been permitted to Income Security Act of 1974, or ERISA, the vast number of companies that do register their domestic partnerships and obtain benefits pur- which generally preempts state and local business with New York City, the Equal suant to applicable collective bargaining agreements since legislation concerning most employee Benefits Bill, if enacted, could have 1995. 13 (15) Unlike benefits for married couples, domestic part- benefits for private sector employees. significant ramifications for domestic ner benefits generally are taxable, because domestic part- Nonetheless, New York employers are partnership benefits nationwide. ners are not considered “spouses” under applicable tax law free to offer domestic partner benefits to (although they may be considered “dependents” in certain The enactment of SONDA, which cases). Specifically, Internal Revenue Service Publication their unmarried employees. Indeed, was first introduced in the New York 501 (2002) notes that for purposes of determining one’s fil- New York State and New York City State Legislature in 1971, represents an ing status, “marriage means only a legal union between a man and a woman as and .” each provide health insurance benefits important step toward equal protection (16) Air Transport Ass’n of Am. v. City & County of San to the domestic partners of their for men and lesbians. Nonetheless, Francisco, 992 F. Supp. 1149, 1180-81 (N.D. Cal. 1998), aff’d in part, 266 F.3d 1064 (9th Cir. 2001). See also S.D. 14 respective employees. Private employ- New York City and other localities con- Myers, Inc. v. City and County of San Francisco, 253 F.3d 461 ers are increasingly providing domestic tinue to provide greater civil rights pro- (9th Cir. 2001). (17) N.Y.C. Council Int. No. 271 (2002). partner benefits, including health insur- tections than New York State in certain ance and other ERISA benefits, as part critical areas, and to be at the forefront in This article is reprinted with permission from the of a broader commitment to eliminating this rapidly developing area of the law. January 9, 2003 edition of the NEW YORK LAW discrimination based on sexual orienta- JOURNAL. © 2003 ALM Properties, Inc. All tion and . Where applica- rights reserved. Further duplication without per- ••••••••••••••• ••••••••••••••• ble law does not provide for a domestic • mission is prohibited. For information , (1) N.Y. Exec. Law §290 et seq. partner registry, an employer typically (2) Eight states prohibit discrimination based on sexual American Lawyer Media, Reprint Department at requires a covered employee to orientation in the public sector: namely, Colorado, 800-888-8300 x6111. #070-01-03-0002 Delaware, Illinois, Indiana, Montana, New Mexico, Penn- complete an affidavit or statement of sylvania and .