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NYC outlaws sex-specific rules for restaurant guests, employees

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Restaurateurs in New York City can no longer require male and female employees to wear different uniforms or conform to different rules about hair length, makeup or jewelry.

Rules just issued by the city’s Commission on Human Rights also outlaw different dress codes for male and female guests. For instance, the new regulations specifically note that male customers cannot be required to wear neckties unless the same demand is made of female guests.

The regulations, posted on the HRC’s website, are intended to halt discrimination on the basis of gender identity. Toward that end, they require that restaurateurs and other employers use the name and gender-related specification (Mr., Mrs., Ms., etc.) preferred by an employee, regardless of his or her biological sex.

The rules use the specific example of someone who was born a male and has the first name “John” listed on a government document. The employee would need to be called Joan if she requests to be known by that name.

Employees also have the right to specify whether “his” or “her” should be used in referring to them.

The rules aim to make businesses gender-blind. Instead of assuming a guest or employee with traditional male characteristics identifies as a man, the proprietor-employer should let the other party ascribe gender to themself.  For instance, they should decide what bathroom to use. Other customers’ objections to that choice are not sufficient reason to prohibit a self-identified woman with male characteristics from using a ladies room, or vice versa, the rules specific.

Requiring that person to use a single-occupancy unisex bathroom instead of the ladies’ or men’s room is not an acceptable compromise, the regulations note.

The Commission acknowledges that courts have usually decided that employers can set different requirements for male and female employees if the burdens are not extraordinary. It cites the example of requirements that female bartenders wear makeup.

The agency flatly states that it rejects that legal standard, and regards all rules that vary by gender to be discriminatory.

In the specific example of makeup, female employees cannot be required to wear it if men are not. Conversely, men cannot be banned from wearing makeup, or jewelry, if women are permitted to do so.

Similarly, the specified hair length for men and women has to be the same, along with any other requirements, such as mandating that long hair be gathered in a ponytail.

Failure to comply can result in civil penalties of up to $125,000, the Commission warns. It notes that willful disregard for the rules can increase the penalties to as much as $250,000.

Rules and regulations that arise in New York often get additional scrutiny because they can serve as models for other areas. Restaurateurs note that the city was the first to require menu labeling.

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