slinky
09-25-2007, 11:34 PM
http://www.lowenstein.com/files/Publication/c7725c1f-c71e-43d2-a09f-018354fd561b/Presentation/PublicationAttachment/d39c8e63-17ec-4e2a-8e9a-0dc1377dee29/Transgendered%20Individuals%20-%20DW%20&%20AW%20-%20Sept2007.pdf
TRANSGENDERED INDIVIDUALS: A PROTECTED CLASS UNDER
NEW JERSEY LAW AGAINST DISCRIMINATION
David M. Wissert, Esq. and Amy Komoroski Wiwi, Esq.* September 2007
We write to alert you to a new law that
expands the class of individuals entitled
to the protections and remedies
of the New Jersey Law Against
Discrimination (“NJLAD”), N.J.S.A.
10:5-1 et seq. A recently enacted
amendment to the NJLAD codifies a
2001 ruling by the New Jersey
Appellate Division, holding that an
employer who terminated its employment
agreement with a transgendered
physician based on physical
changes she underwent in preparation
for a sex change operation,
wrongfully discriminated against her
based on sex. The amendment goes
further than the court ruling which
inspired it, and shields a newly protected
class against discrimination
based on their “gender identity or
expression.” The amendment was
signed into law by Governor Jon
Corzine on December 18, 2006 and
became effective as of July 17, 2007.
Background of NJLAD
Before the recent amendment, NJLAD
protected employees against discrimination
based on race, creed, color, national
origin, nationality, ancestry, age, sex
(including pregnancy), familial status,
marital status, domestic partnership status,
affectional or sexual orientation,
atypical hereditary cellular or blood trait,
genetic information, liability for military
service, and mental or physical disability,
perceived disability, and AIDS and HIV
status. The statute protects those specified
classes of persons from discrimination
in employment, any place of public
accommodation, and housing. New
Jersey courts view NJLAD as an important
tool in combating employment discrimination
on the basis of invidious classifications,
and often liberally interpret
NJLAD’s provisions in favor of individuals
seeking protection from discrimination.
“Gender Identity or
Expression” Amendment to
LAD
Currently, nine states (Minnesota, Rhode
Island, Illinois, New Mexico, California,
Maine, Illinois, Hawaii, Washington, and
now New Jersey) and the District of
Columbia, as well as just under ninety
cities and counties in the United States,
have enacted laws prohibiting discrimination
based on gender identity or expression.
New Jersey’s new law defines the
term “gender identity or expression” as
“having or being perceived as having a
gender related identity or expression
whether or not stereotypically associated
with a person’s assigned sex at birth.”
Given New Jersey’s historically liberal interpretation
of NJLAD’s coverage, and the
expansive language used in the statute,
employers should be aware of the potentially
broad application of this new provision.
Practical Guidance for Employers
Although it is too early to tell how courts
will apply the broad language of the statute,
we offer practical guidance for employers to
consider regarding the amendment:
LOWENSTEIN SANDLER PC CLIENT ALERT
EMPLOYMENT
TRANSGENDERED INDIVIDUALS: A PROTECTED CLASS UNDER
NEW JERSEY LAW AGAINST DISCRIMINATION
David M. Wissert, Esq. and Amy Komoroski Wiwi, Esq.* September 2007
Attorney Advertising
• Compliance: The gender identity
or expression amendment to NJLAD
became effective on July 17, 2007.
As such, employers should modify
employee handbooks and antiharassment
training materials to
include gender identity or expression
as a protected class
• Accommodations: Be mindful
that the new law prohibits discrimination
in workplace accommodations
that are traditionally restricted
to persons of a particular gender
such as restrooms and locker
rooms. For example, according to
the amendment, a person who is
anatomically a man, but who identifies
with the female gender, now
should be entitled to use the
women’s restroom or locker room,
consistent with her gender identity
or expression. It is an open question
as to how an employer should
deal with employees who might feel
uncomfortable sharing a restroom
with a transgendered employee.
Some commentators have suggested
that an employer likely may make
accommodations by designating a
single-occupancy bathroom for
employees who might feel uncomfortable
sharing a restroom with a
transgendered employee so as to
curb sexual harassment or hostile
work environment claims from those
objecting employees. It is by no
means certain that such an “accommodation”
would not itself constitute
a form of discrimination.
Notably, a similar provision in
Minnesota’s gender identity and
expression law was the subject of a
lawsuit in 2001. There, a transgendered
employee brought an action
against her employer, claiming that
a policy requiring employees to use
the restroom in accordance with
their “biological gender,” violated
Minnesota’s prohibition against discrimination
on the basis of gender
identity or expression. The
Minnesota Supreme Court held that
an employer may use its discretion,
and balance the needs of other
employees, in formulating a restroom
use policy. Goins v. West
Group, 635 N.W.2d 717 (Minn.
2001). Given the NJLAD’s lack of
clear guidance on this point, New
Jersey employers should consider
carefully their options with counsel
to appropriately accommodate all
employees.
• Notice: The law does not indicate
whether an employee must disclose
his or her transgender status in
order to benefit from the law’s protection.
In addition, the law does
not speak to whether inquiries
about the transgender status of an
employee may violate the statute.
Therefore, employers should exercise
caution when assessing an
individual’s actual or perceived gender
identity or expression.
• Dress Codes: Employers are
now required to allow employees to
dress and groom themselves “consistently
with the employee’s gender
identity or expression,” so long as it
conforms to reasonable standards
of workplace appearance. Because
the law does not clarify whether an
individual must disclose his or her
status to enjoy the protections of
the law, it is unclear whether a man
may now wear a skirt to work so
long as his appearance otherwise
conforms with a company dress
code.
TRANSGENDERED INDIVIDUALS: A PROTECTED CLASS UNDER
NEW JERSEY LAW AGAINST DISCRIMINATION
David M. Wissert, Esq. and Amy Komoroski Wiwi, Esq.* September 2007
We write to alert you to a new law that
expands the class of individuals entitled
to the protections and remedies
of the New Jersey Law Against
Discrimination (“NJLAD”), N.J.S.A.
10:5-1 et seq. A recently enacted
amendment to the NJLAD codifies a
2001 ruling by the New Jersey
Appellate Division, holding that an
employer who terminated its employment
agreement with a transgendered
physician based on physical
changes she underwent in preparation
for a sex change operation,
wrongfully discriminated against her
based on sex. The amendment goes
further than the court ruling which
inspired it, and shields a newly protected
class against discrimination
based on their “gender identity or
expression.” The amendment was
signed into law by Governor Jon
Corzine on December 18, 2006 and
became effective as of July 17, 2007.
Background of NJLAD
Before the recent amendment, NJLAD
protected employees against discrimination
based on race, creed, color, national
origin, nationality, ancestry, age, sex
(including pregnancy), familial status,
marital status, domestic partnership status,
affectional or sexual orientation,
atypical hereditary cellular or blood trait,
genetic information, liability for military
service, and mental or physical disability,
perceived disability, and AIDS and HIV
status. The statute protects those specified
classes of persons from discrimination
in employment, any place of public
accommodation, and housing. New
Jersey courts view NJLAD as an important
tool in combating employment discrimination
on the basis of invidious classifications,
and often liberally interpret
NJLAD’s provisions in favor of individuals
seeking protection from discrimination.
“Gender Identity or
Expression” Amendment to
LAD
Currently, nine states (Minnesota, Rhode
Island, Illinois, New Mexico, California,
Maine, Illinois, Hawaii, Washington, and
now New Jersey) and the District of
Columbia, as well as just under ninety
cities and counties in the United States,
have enacted laws prohibiting discrimination
based on gender identity or expression.
New Jersey’s new law defines the
term “gender identity or expression” as
“having or being perceived as having a
gender related identity or expression
whether or not stereotypically associated
with a person’s assigned sex at birth.”
Given New Jersey’s historically liberal interpretation
of NJLAD’s coverage, and the
expansive language used in the statute,
employers should be aware of the potentially
broad application of this new provision.
Practical Guidance for Employers
Although it is too early to tell how courts
will apply the broad language of the statute,
we offer practical guidance for employers to
consider regarding the amendment:
LOWENSTEIN SANDLER PC CLIENT ALERT
EMPLOYMENT
TRANSGENDERED INDIVIDUALS: A PROTECTED CLASS UNDER
NEW JERSEY LAW AGAINST DISCRIMINATION
David M. Wissert, Esq. and Amy Komoroski Wiwi, Esq.* September 2007
Attorney Advertising
• Compliance: The gender identity
or expression amendment to NJLAD
became effective on July 17, 2007.
As such, employers should modify
employee handbooks and antiharassment
training materials to
include gender identity or expression
as a protected class
• Accommodations: Be mindful
that the new law prohibits discrimination
in workplace accommodations
that are traditionally restricted
to persons of a particular gender
such as restrooms and locker
rooms. For example, according to
the amendment, a person who is
anatomically a man, but who identifies
with the female gender, now
should be entitled to use the
women’s restroom or locker room,
consistent with her gender identity
or expression. It is an open question
as to how an employer should
deal with employees who might feel
uncomfortable sharing a restroom
with a transgendered employee.
Some commentators have suggested
that an employer likely may make
accommodations by designating a
single-occupancy bathroom for
employees who might feel uncomfortable
sharing a restroom with a
transgendered employee so as to
curb sexual harassment or hostile
work environment claims from those
objecting employees. It is by no
means certain that such an “accommodation”
would not itself constitute
a form of discrimination.
Notably, a similar provision in
Minnesota’s gender identity and
expression law was the subject of a
lawsuit in 2001. There, a transgendered
employee brought an action
against her employer, claiming that
a policy requiring employees to use
the restroom in accordance with
their “biological gender,” violated
Minnesota’s prohibition against discrimination
on the basis of gender
identity or expression. The
Minnesota Supreme Court held that
an employer may use its discretion,
and balance the needs of other
employees, in formulating a restroom
use policy. Goins v. West
Group, 635 N.W.2d 717 (Minn.
2001). Given the NJLAD’s lack of
clear guidance on this point, New
Jersey employers should consider
carefully their options with counsel
to appropriately accommodate all
employees.
• Notice: The law does not indicate
whether an employee must disclose
his or her transgender status in
order to benefit from the law’s protection.
In addition, the law does
not speak to whether inquiries
about the transgender status of an
employee may violate the statute.
Therefore, employers should exercise
caution when assessing an
individual’s actual or perceived gender
identity or expression.
• Dress Codes: Employers are
now required to allow employees to
dress and groom themselves “consistently
with the employee’s gender
identity or expression,” so long as it
conforms to reasonable standards
of workplace appearance. Because
the law does not clarify whether an
individual must disclose his or her
status to enjoy the protections of
the law, it is unclear whether a man
may now wear a skirt to work so
long as his appearance otherwise
conforms with a company dress
code.