Same-Sex Harassment and Harassment Based on Gender Identity or Sexual Orientation in New York

Harassment by a person of the same sex can be unlawful sexual harassment, and harassment aimed at sexual orientation or gender identity is addressed at all three layers of law, in different ways. Under federal Title VII, the U.S. Supreme Court has held that a claim is not barred merely because the harasser and the person harassed are the same sex.⁠^[1] The New York State Human Rights Law (NYSHRL) separately lists sexual orientation and gender identity or expression as characteristics an employer may not harass a person because of, and the New York City Human Rights Law (NYCHRL) defines "gender" to include gender identity and gender expression.⁠^[2][3]

What each law protects

Layer	Protected characteristic in the text	How it reaches sexual orientation and gender identity
Federal (Title VII)	"Sex," along with race, color, religion and national origin.⁠[7]	In 2020 the U.S. Supreme Court held that an employer who fires a person for being homosexual or transgender violates Title VII's ban on discrimination because of sex.⁠[8]
New York State (NYSHRL)	Sex, sexual orientation, and gender identity or expression are each listed.⁠[9]	"Gender identity or expression" is defined to include a person's actual or perceived gender-related identity, appearance, behavior or expression, including being transgender; "sexual orientation" means heterosexuality, homosexuality, bisexuality or asexuality, actual or perceived.⁠[10][11]
New York City (NYCHRL)	Gender and sexual orientation are each listed, actual or perceived.⁠[12]	"Gender" includes actual or perceived sex, gender identity and gender expression regardless of the sex assigned at birth; sexual orientation is defined as a continuum that includes heterosexuality, homosexuality, bisexuality, asexuality and pansexuality.⁠[3]

Employer size differs by layer too. Title VII covers employers with 15 or more employees.⁠^[13] The State Human Rights Law covers all employers within the state.⁠^[14] Under the City Human Rights Law, a gender-based harassment claim can be brought against any employer, including one with fewer than four people; for most other employment claims the City law does not apply to an employer that had fewer than four persons in its employ throughout the period the Code describes.⁠^[15][16] The full lists are in protected characteristics under federal, State and City law.

Same-sex harassment

Federal law. In Oncale v. Sundowner Offshore Services (1998), the Supreme Court held that nothing in Title VII necessarily bars a claim of discrimination because of sex merely because the plaintiff and the defendant are of the same sex.⁠^[1] The Court added that harassing conduct need not be motivated by sexual desire; its example was a woman harassed in sex-specific and derogatory terms by another woman who is hostile to the presence of women in the workplace.⁠^[17]

Oncale also set limits that still apply to federal claims. The employee must prove the conduct was discrimination because of sex, not merely conduct tinged with offensive sexual connotations, and Title VII is not a general civility code.⁠^[18] Severity is judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances and the social context, so that courts can tell simple teasing or roughhousing from conduct a reasonable person would find severely hostile or abusive.⁠^[19] The EEOC's current summary of federal law says the victim and the harasser can each be a woman or a man and can be the same sex.⁠^[20]

New York State. The State's model sexual harassment prevention policy says sexual harassment can occur between any individuals, regardless of their sex or gender, and does not have to be between members of the opposite sex or gender.⁠^[21] The State statute asks whether the harassment subjects a person to inferior terms, conditions or privileges of employment because of membership in a protected category.⁠^[2]

New York City. Under the City Human Rights Law the employee must show they were treated less well than other employees because of gender.⁠^[22] As under federal law, a discriminatory motive is still required: the City law is not a general civility code, and a boss who is overbearing or obnoxious to everyone does not violate it for that reason alone.⁠^[23][18]

Sexual orientation and gender identity

Federal law. Bostock v. Clayton County (2020) held that firing someone for being homosexual or transgender is discrimination because of sex under Title VII.⁠^[8] The Court was explicit about what it did not decide: it said it did not address sex-segregated bathrooms, locker rooms or dress codes under Title VII.⁠^[8]

New York State. The State law names these characteristics directly. It is an unlawful discriminatory practice for an employer to subject any individual to harassment because of sexual orientation or gender identity or expression.⁠^[2] Gender identity or expression was added to the State Human Rights Law in 2019.⁠^[10]

New York City. The City Human Rights Law protects against employment discrimination because of actual or perceived gender and sexual orientation, and its definition of gender covers gender identity and gender expression.⁠^[12][3] The NYC Commission on Human Rights publishes legal enforcement guidance on discrimination based on gender identity or expression.⁠^[24]

Misgendering, deadnaming and stereotypes

Conduct aimed at a person's gender identity may not be sexual in nature at all. New York State's model policy addresses it directly:

• It says sexual harassment includes all forms of gender discrimination, including gender-role stereotyping and treating employees differently because of their gender.⁠^[25]
• It lists sex stereotyping as an example, including remarks about an employee's gender expression, such as wearing a garment typically associated with a different gender identity.⁠^[4]
• It lists intentional misuse of an individual's preferred pronouns, along with bullying, yelling and name-calling, among hostile actions taken because of sex, sexual orientation, gender identity or gender expression.⁠^[4]
• It includes a section on gender diversity and says discrimination based on sex stereotypes, gender expression and perceived identity are all forms of sexual harassment.⁠^[25]

The State's model training materials include a case study in which a coworker persistently uses a transgender employee's former name and the wrong pronouns, and a supervisor tells the employee to let it go.⁠^[26] The State's answer in that training material is that the supervisor was required to report the complaint, that the coworker does not have the right to intentionally ignore the employee's name and pronouns, and that under the Human Rights Law personal religious belief is not a justifiable defense for discrimination.⁠^[26] That is training material, not a court ruling.

In New York City, the Commission's enforcement guidance on gender identity and expression includes a section on failing to use a person's name or pronoun.⁠^[24]

What changed at the EEOC in 2025 and 2026, and what did not

Readers who follow federal news may have seen reports about the EEOC and gender identity. Here is the sequence, as the EEOC itself describes it:

1. In April 2024 the EEOC issued an Enforcement Guidance on Harassment in the Workplace that replaced its 1990s harassment guidance documents.⁠^[27]
2. On May 15, 2025, a federal district court in Texas held that the guidance's expansion of the definition of "sex" was contrary to law and vacated portions of it nationwide, according to the EEOC's announcement.⁠^[28] The same announcement described the portions the EEOC's then Acting Chair opposed as those taking the position that harassing conduct includes denying access to a bathroom or other sex-segregated facility consistent with a person's gender identity, and repeated and intentional use of a name or pronoun inconsistent with a person's known gender identity.⁠^[28]
3. On January 22, 2026, the Commission voted 2-1 to rescind the 2024 guidance in full.⁠^[5]

The 2024 guidance is rescinded, and the 1990s documents it had replaced carry a "Rescinded" banner on the EEOC's website.⁠^[5][27] Two points follow.

First, the vote concerned an agency guidance document. In announcing it, the EEOC's Chair stated that rescinding the guidance does not give employers license to engage in unlawful harassment, and that federal employment laws against discrimination, harassment and retaliation, and Supreme Court precedent interpreting those laws, remain firmly in place.⁠^[6] Bostock is a Supreme Court decision on discharge because of sexual orientation or transgender status, with the limits the Court itself stated.⁠^[8]

Second, the EEOC's guidance was a federal document about Title VII. New York State's statute and New York City's code protect gender identity and expression in their own text.⁠^[2][3]

Which test applies to the conduct?

The test is the same as for any other sexual harassment claim under each layer, which means it differs by layer:

• Federal: the conduct must be severe or pervasive enough to alter the conditions of employment and create an abusive working environment.⁠^[29]
• New York State: harassment is unlawful regardless of whether it would be considered severe or pervasive, subject to the employer's affirmative defense that the conduct does not rise above what a reasonable victim with the same protected characteristic or characteristics would consider petty slights or trivial inconveniences.⁠^[2]
• New York City: severity and pervasiveness bear on damages, not liability, and the employer may prove as an affirmative defense that the conduct amounted to no more than petty slights and trivial inconveniences.⁠^[30][31]

See what is a hostile work environment, New York City's "treated less well" standard and the petty slights defense.

Intent, and who can be a harasser

New York State's model policy says the intent of the behavior, such as making a joke, does not neutralize a harassment claim.⁠^[32] It also says a supervisor, a supervisee or a coworker can be a harasser, as can a client, customer or visitor.⁠^[21]

Time limits and next steps

A complaint to the State Division of Human Rights must be filed within three years after the alleged unlawful discriminatory practice.⁠^[33] At the NYC Commission on Human Rights, the Administrative Code sets one year for complaints generally and three years for a claim of gender-based harassment.⁠^[34][35] This page does not say whether harassment based only on sexual orientation counts as "gender-based harassment" for that longer City period or for the City's any-size employer rule, so check that point before relying on the three years. The federal EEOC charge period in New York is 300 days from the alleged harm.⁠^[36] See every deadline in one table, how to report harassment to your employer and, for the full picture of what the law covers, what counts as sexual harassment in New York.