Sexual Orientation Is Now a Protected Category

Sexual orientation will now be treated as any other protected category in employment litigation under New York State law. After having been proposed without passage for 31 years, the Sexual Orientation Non-Discrimination Act (S. 720/ A. 1971) (SONDA) finally became law on January 16, 2003. The law does not create a new statute, but amends the New York Human Rights law to insert the term 'sexual orientation' after 'national origin' and before 'sex' in every place where they appear. (An effort to further amend the legislation prior to explicitly prohibit discrimination based on gender identity was unsuccessful.)

SONDA ensures that gay and lesbian employees who allege discrimination based on sexual orientation will bear the same burdens and have available the same remedies as employees alleging discrimination based on any other protected category under the state human rights law.

Prior to the passage of SONDA, the only statewide protection for gay and lesbian employees was found in an executive order issued by then-governor Mario Cuomo in 1987. That order was enforced by the State Division of Human Rights, and prohibited sexual-orientation discrimination in state agencies and departments. Now, all gay and lesbian employees, whether working for public or private employers, will be able to challenge discrimination against them by filing a claim with the State Division of Human Rights or by bringing suit in court.

New York joins 12 other states (California, Connecticut, Hawaii, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, Rhode Island, Vermont and Wisconsin), the District of Columbia, and numerous municipalities that have adopted such legislation. It also amends New York State law to prohibit sexual orientation discrimination in training programs, public accommodations, housing, credit and education. Federal legislation to prohibit sexual orientation discrimination in employment ('ENDA') is pending, but is not close to becoming law at present.
SONDA amends the definitions section of the Executive Law (' 292) to add a new subdivision, 27, which reads: 'The term 'sexual orientation' means heterosexuality, homosexuality, bisexuality, or asexuality, whether actual or perceived. However, nothing contained herein shall be construed to protect conduct otherwise proscribed by law.'

In addition to filing a claim under SONDA, a person aggrieved by sexual orientation discrimination in New York may have other potential remedies. The following cities in New York have sexual orientation nondiscrimination laws: Albany, Buffalo, Hampton, Ithaca, New York City, Rochester and Syracuse. The following counties have such laws: Albany, Nassau, Onondaga, Tompkins and Westchester.

These local statutes may be more favorable to employees than the New York State law. While the New York Human Rights law does not provide for attorneys' fees or punitive damages, those remedies are available under the New York City Administrative Code, which prohibits sexual orientation discrimination in employment. Thus, for employees who work in New York City, asserting claims under both statutes will assure the full panoply of remedies available in employment litigation.

Many employers across the state have adopted policies prohibiting discrimination based on sexual orientation. Depending on the wording of such policy, and limitations that may be contained in the manual where such a policy is contained, a breach of contract claim may be available. The aggrieved employee would have to allege an express limitation on the employer's right to discharge on grounds of sexual orientation. (See eg, Weiner v. McGraw-Hill, Inc. 57 N.Y.2d 458 (1982); Murphy v. American Home Products, Corp. 58 N.Y.2d 293 (1983); Gorrill v. Icelandaid/Flugleidir, 761 F.2d 847 (2d Cir. 1985).

The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution is increasingly being used with some success to attack 'irrational' discrimination against gays and lesbians by state actors. (See e.g., Quinn v. Nassau County Police Department, 53 F. Supp.2d 347 (E.D.N.Y 1999), in which Judge Spatt upheld an equal protection claim for a gay police officer who was badly harassed by his fellow employees.) In Rene v. MGM Grand Hotel, Inc., 2002 U.S. App. LEXIS 20098. (9th Cir. 2002), the Ninth Circuit, sitting en banc, issued a plurality opinion holding that the sexual-touching harassment of a gay man by his male coworkers gave rise to a claim under Title VII for gender discrimination. This decision broke new ground in that it reached the conduct of a private employer.

The addition of sexual orientation to the New York Human Rights law is a long-overdue step in the evolution of civil rights in the state. Enforcement by the State Division of Human Rights, along with actions brought in court by members of the New York bar, will help ensure that gay and lesbian employees do not suffer workplace bias in the future.

Lee F. Bantle is a civil rights attorney with Bantle & Levy, LLP.

Sexual orientation will now be treated as any other protected category in employment litigation under New York State law. After having been proposed without passage for 31 years, the Sexual Orientation Non-Discrimination Act (S. 720/ A. 1971) (SONDA) finally became law on January 16, 2003. The law does not create a new statute, but amends the New York Human Rights law to insert the term 'sexual orientation' after 'national origin' and before 'sex' in every place where they appear. (An effort to further amend the legislation prior to explicitly prohibit discrimination based on gender identity was unsuccessful.)

SONDA ensures that gay and lesbian employees who allege discrimination based on sexual orientation will bear the same burdens and have available the same remedies as employees alleging discrimination based on any other protected category under the state human rights law.

Prior to the passage of SONDA, the only statewide protection for gay and lesbian employees was found in an executive order issued by then-governor Mario Cuomo in 1987. That order was enforced by the State Division of Human Rights, and prohibited sexual-orientation discrimination in state agencies and departments. Now, all gay and lesbian employees, whether working for public or private employers, will be able to challenge discrimination against them by filing a claim with the State Division of Human Rights or by bringing suit in court.

New York joins 12 other states (California, Connecticut, Hawaii, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, Rhode Island, Vermont and Wisconsin), the District of Columbia, and numerous municipalities that have adopted such legislation. It also amends New York State law to prohibit sexual orientation discrimination in training programs, public accommodations, housing, credit and education. Federal legislation to prohibit sexual orientation discrimination in employment ('ENDA') is pending, but is not close to becoming law at present.
SONDA amends the definitions section of the Executive Law (' 292) to add a new subdivision, 27, which reads: 'The term 'sexual orientation' means heterosexuality, homosexuality, bisexuality, or asexuality, whether actual or perceived. However, nothing contained herein shall be construed to protect conduct otherwise proscribed by law.'

In addition to filing a claim under SONDA, a person aggrieved by sexual orientation discrimination in New York may have other potential remedies. The following cities in New York have sexual orientation nondiscrimination laws: Albany, Buffalo, Hampton, Ithaca, New York City, Rochester and Syracuse. The following counties have such laws: Albany, Nassau, Onondaga, Tompkins and Westchester.

These local statutes may be more favorable to employees than the New York State law. While the New York Human Rights law does not provide for attorneys' fees or punitive damages, those remedies are available under the New York City Administrative Code, which prohibits sexual orientation discrimination in employment. Thus, for employees who work in New York City, asserting claims under both statutes will assure the full panoply of remedies available in employment litigation.

Many employers across the state have adopted policies prohibiting discrimination based on sexual orientation. Depending on the wording of such policy, and limitations that may be contained in the manual where such a policy is contained, a breach of contract claim may be available. The aggrieved employee would have to allege an express limitation on the employer's right to discharge on grounds of sexual orientation. (See eg, Weiner v. McGraw-Hill, Inc. 57 N.Y.2d 458 (1982); Murphy v. American Home Products, Corp . 58 N.Y.2d 293 (1983); Gorrill v. Icelandaid/Flugleidir , 761 F.2d 847 (2d Cir. 1985).

The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution is increasingly being used with some success to attack 'irrational' discrimination against gays and lesbians by state actors. ( See e.g., Quinn v. Nassau County Police Department , 53 F. Supp.2d 347 (E.D.N.Y 1999), in which Judge Spatt upheld an equal protection claim for a gay police officer who was badly harassed by his fellow employees.) In Rene v. MGM Grand Hotel, Inc., 2002 U.S. App. LEXIS 20098. (9th Cir. 2002), the Ninth Circuit, sitting en banc, issued a plurality opinion holding that the sexual-touching harassment of a gay man by his male coworkers gave rise to a claim under Title VII for gender discrimination. This decision broke new ground in that it reached the conduct of a private employer.

The addition of sexual orientation to the New York Human Rights law is a long-overdue step in the evolution of civil rights in the state. Enforcement by the State Division of Human Rights, along with actions brought in court by members of the New York bar, will help ensure that gay and lesbian employees do not suffer workplace bias in the future.

Lee F. Bantle is a civil rights attorney with Bantle & Levy, LLP.