New Jersey Joins A Growing Number Of Jurisdictions In Expressly Prohibiting Discrimination On The Basis Of Gender Identity Or Expression - Part I

Sunday, July 1, 2007 - 01:00

While national attention has been focused on the debate relating to civil rights for gay and lesbian individuals, the fact that an increasing number of jurisdictions are providing anti-discrimination protection to transgender persons throughout the United States has received much less exposure. For example, California, Illinois, Maine, Minnesota, New Mexico, Rhode Island, Washington and the District of Columbia already have statutes expressly protecting transgender employees from employment discrimination, and Indiana and Kentucky have Executive Orders prohibiting such discrimination against state employees. In addition, more than sixty local jurisdictions and several prominent cities including Denver, New York, Atlanta, Boston, Baltimore, Philadelphia, Dallas, Austin and Seattle offer similar protection.1 Effective June 17, 2007, New Jersey joined the list of jurisdictions offering such protection to transgender individuals. Specifically, New Jersey's Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 et seq., which already prohibits discrimination because of race, creed, color, national origin, nationality, ancestry, age, marital status, domestic partnership status, affectional or sexual orientation, genetic information, sex, disability or atypical hereditary cellular or blood trait, and service in the Armed Forces, was recently amended to define "gender identity or expression" as a protected characteristic. As has already been the case in other jurisdictions, the recent amendments to New Jersey's LAD contain certain provisions that may result in a conflict between transgender employees' LAD rights and the personal privacy and other rights of their coworkers.

I. New Jersey's New Legislation

Effective June 17, 2007, the recent New Jersey legislation makes it an unlawful employment practice to discriminate or take an adverse employment action against an employee because of his or her gender identity or expression. The new legislation defines "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." The new legislation further clarifies that this definition expressly includes "transgender status."

"Gender identity or expression" is something different than "sexual orientation" - a person's attraction to a particular sex - which was already a protected characteristic under New Jersey's LAD. The revised legislation, however, seeks to protect an individual's own sexual identity and/or his or her outward expression of his or her sexual identity. The categories of persons protected by the new legislation are transgender individuals, which include transsexuals (people who strongly identify with being a member of the opposite biological sex and may seek to live as a member of that sex by undergoing surgery and/or therapies, including hormonal therapy, to obtain the desired physical appearance), transvestites (people who adopt the dress and often the behavior typical of the opposite sex but, unlike transsexuals, do not wish to change sexes) and those who favor androgyny (people who identify as neither specifically masculine nor specifically feminine).

The new legislation also includes provisions relating to employer dress standards, and to places of public accommodation. As to dress standards, while the new legislation permits an employer to require its employees "to adhere to reasonable workplace appearance, grooming and dress standards," an employer must still permit its employees "to appear, groom and dress consistent with [their] gender identity or expression." Accordingly, if a transgender individual appears in the workplace in dress appropriate for his or her gender identity, an employer may violate the LAD by taking any subsequent adverse employment action against that individual because of his or her dress, and/or for requiring him or her to dress consistent with their "assigned" gender at birth.2

As to places of public accommodation, the new legislation requires that employers permit transgender individuals to be admitted to such places "based upon their gender identity or expression." One of the more significant implications of this amendment relates to use of single sex facilities such as restrooms, shower facilities and locker rooms in the workplace. A reasonable interpretation of the new legislation may require employers to permit a transgender individual to use such single sex facilities consistent with his or her gender identity or expression rather than his or her assigned gender at birth. It is this particular provision which gives rise to the most likely area of conflict between the competing LAD rights of a transgender employee and the privacy and other rights of his or her coworkers.

II. New Jersey Case Law

The December 2006 amendments to the LAD codified the holding in Enriquez v. West Jersey Health Systems, 342 N.J.Super. 501 (App. Div. 2001), cert. denied, 170 N.J. 211 (2001). In Enriquez, a doctor was in the process of changing from a male to a female via hormone therapy and surgery. The employer refused to renew the doctor's employment contract because of the various changes that the doctor was undergoing. The doctor sued under the LAD, but on summary judgment the motion judge dismissed finding that the plaintiff had not asserted sexual orientation discrimination, and that the legislature had not provided a remedy for persons who elected to change their sexual identity. New Jersey's Appellate Division initially agreed that the plaintiff had not asserted sexual orientation discrimination, but nonetheless reversed finding:

It is incomprehensible to us that our Legislature would ban discrimination against heterosexual men and women; against homosexual men and women; against bisexual men and women; against men and women who are perceived, presumed or identified by others as not conforming to the stereotypical notions of how men and women behave, but would condone discrimination against men or women who seek to change their anatomical sex because they suffer from a gender identity disorder. We conclude that sex discrimination under the LAD includes gender discrimination so as to protect plaintiff from gender stereotyping and discrimination for transforming herself from a man to a woman.3

The Appellate Division also determined that gender dysphoria or transsexualism, defined generally as a psychiatric disorder in which a person feels persistently uncomfortable about his or her anatomical sex and seeks medical treatment including hormonal therapy and surgery to bring about permanent sex change, could be considered a disability protected by the LAD.

The 2006 amendments to the LAD, however, go substantially farther than the holding in Enriquez. Specifically, while the Appellate Division was willing to consider discrimination against an individual converting to another gender to be a form of sex, or potentially disability discrimination, the new legislation makes "gender identity or expression" its own protected category. Accordingly, employers should revise their postings and policies to expressly include "gender identity or expression" as a protected category of employees. In addition, the new legislation's specific provisions relating to dress code enforcement and public accommodations, including same sex facilities, are much more narrowly tailored than the holding in Enriquez.

III. Title VII And Federal Case Law

Title VII of the Civil Rights Act of 1964 ("Title VII") is a federal statute prohibiting, among other things, employment discrimination based on race, color, religion, sex, or national origin. Title VII, however, does not contain express language barring discrimination based upon an individual's expression of gender. Moreover, the federal courts, most notably in Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984), cert. denied, 471 U.S. 1017, 105 S.Ct. 2023, 85 L.Ed.2d 304 (1985), have traditionally held that discrimination on the basis of gender dysophoria is not sex discrimination.4 Nonetheless, a few federal courts have begun to recognize such claims on the basis that perceived gender identity is stereotype discrimination prohibited by the Supreme Court's ruling in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In Price Waterhouse v. Hopkins, the U.S. Supreme Court held that harassment directed at a person because that person does not conform to traditional sex stereotypes is prohibited by Title VII.

In Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004), the U.S. Court of Appeals for the Sixth Circuit ruled that a preoperative male-to-female transsexual could bring a claim of sex discrimination and sex stereotyping under Title VII of the Civil Rights Act of 1964. With that ruling, the Sixth Circuit became the first appellate court in the country to rule that Title VII protects transgender individuals in that it covers discrimination based both on biological sex and socially prescribed expectations based on gender. Relying upon Price Waterhouse v. Hopkins, the Sixth Circuit said that discrimination based on a person's gender identity was enough to permit him or her to use Title VII to challenge the discrimination. The Court stated:

Sex stereotyping based upon a person's gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label such as "transsexual," is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.5

Similarly, in Barnes v. City of Cincinnati, 401 F.3d 729, 737 (6th Cir. 2005) and Myers v. Cuyahago County, Ohio, No. 05-3370, 2006 WL 1479081, at *6, (6th Cir., May 31, 2006), the Sixth Circuit reaffirmed its holding in City of Salem, finding that transsexuals alleging discrimination because of their failure to conform to male stereotypes could maintain Title VII claims.6

Recently, the District of Columbia in Shroer v. Billington, 424 F.Supp.2d 203 (D.D.C. 2006), also extended Title VII coverage to transsexuals, but notably did not rely upon a Price Waterhouse analysis to do so. Specifically, Judge James Robertson, U.S.D.J. found that the plaintiff in that case had offered insufficient evidence to be able to assert a claim for discriminatory gender stereotyping. Instead, Judge Robertson found transsexuals to be a protected class under the express terms of Title VII, stating that it is evident that they are discriminated against because of their "sex." In so holding, Judge Robertson expressly rejected the long line of cases concluding that Congress would have expressly covered transsexuals in Title VII's definition of "sex" if it had wanted to provide legal protection to such individuals. Judge Robertson initially noted that the seminal case excluding transsexuals from Title VII coverage, Ulane, was decided before the Supreme Court's decision in Price Waterhouse, and therefore he simply dismissed the line of cases following Ulane as antiquated precedent, not in keeping with modern jurisprudence. He further noted that Ulane's rationale was contrary to several recent Supreme Court cases, including Onacle v. Sundower Offshore Services, Inc., 523 U.S.75, 118 S.Ct. 998, 140 L.Ed 201 (1998), which found same sex harassment to be actionable conduct under Title VII.7

In the Third Circuit, no reported case has followed the Sixth Circuit's broad holding in City of Salem or its progeny. A 2006 unreported decision out of the Western District of Pennsylvania, Mitchell v. Axcan Scandipharm Inc., No. Civ. A. 05-243, 2006 WL 456173 (W.D. Pa., Feb. 17, 2006), however, expressly adopted the rationale employed by the Sixth Circuit, and permitted a transgender employee to proceed with a wrongful termination claim under Title VII based upon sexual stereotyping. Notably, Judge Gary L. Lancaster, U.S.D.J.'s decision in Mitchell relied heavily upon Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257, 264 (3rd Cir. 2001), an earlier Third Circuit decision. In Bibby, Judge Maryanne Trump Barry, U.S.A.J. opined, albeit in dicta, that a claim that a plaintiff was "harassed because he failed to comply with societal stereotypes of how men ought to appear or behave" might be actionable sex discrimination. Nonetheless, the holding in that case actually dismissed a homosexual man's discrimination claim because he alleged sexual orientation discrimination, which is not covered by Title VII's express terms.81 American Bar Associations' ("ABA") 2006 Resolution 112B has recognized an emerging trend that "a growing number of jurisdictions have adopted laws and ordinances explicitly prohibiting such discrimination," and that "courts are beginning to interpret federal, state and local laws that prohibit discrimination on the basis of sex or disability to protect transgender people." See http://www.abanet.org/leadership/2006/annual/.

2 For example in Massachusetts, which has had similar legislation for several years, at least two cases have arisen when a transgender individual was required to assume dress consistent with their "assigned" gender. See e.g. Doe ex rel. Doe v. Yunits, 2000 WL 33162199, at * 8 (Mass. Super. Ct. 2000) (allowing injunctive relief for a transgender student barred from school for refusing to comply with sex-specific dress code requirements and noting that the key was that it was not applied uniformly to both sexes); Lie v. Sky Publ'g Corp ., 15 Mass. L. Rep. 412, 2002 WL 31492397, at *8 (Mass. Super. Ct. 2002) (allowing discrimination suit where the employer prohibited a transgender employee from wearing clothing consistent with her gender identity).

3 Enriquez , 342 N.J.Super. at 515-16.

4 See also Sommers v. Budget Mktg., Inc ., 667 F.2d 748, 750 (8th Cir. 1982 ); Holloway v. Arthur Andersen & Co., 566F.2d 659, 662-63 (9th Cir . 1977); Grossman v. Bernards Tp. Bd. of Educ., 11Fair Empl. Prac. Cas. (BNA) 1196 (D.N.J. 1975), aff'd, 538 F.2d 319 (3d Cir.), cert. denied, 429 U.S. 897, 97 S.Ct. 261, 50 L.Ed.2d 181 (1976).

5 Smith, 378 F.3d at 575.

6 See also Tronetti v. TLC Healthshore Hospital, 2003 WL 22757935 (W.D.N.Y., Sept. 26, 2003), employing Price Waterhouse's prohibition on discriminatory stereotyping to extend Title VII's protections to a preoperative transsexual who alleged a hostile working environment, and Lewis v. Forest Pharmaceuticals, Inc., 217 F.Supp. 2d 638 (D.Md. 2002), finding transgender employees to generally be within the group of employees protected by Title VII.

7 Additionally, the 1st Circuit and 9th Circuit Courts of Appeal have applied the principles of Price Waterhouse to hold that transsexuals are protected under other federal laws. See Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) (transsexuals are protected under the Gender Motivated Violence Act); Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000) (transsexuals are protected under the Equal Credit Opportunity Act). These decisions suggest that the 1st and 9th Circuits may be receptive to Title VII claims by transsexuals post -Price Waterhouse.

8 See also Dobre v. Nat'l R.R. Passenger Corp., 850 F. Supp. 284 (E.D. Pa. 1993). In Dobre, Amtrak hired the plaintiff, who "presented herself as a man," but who several months afterwards informed her supervisors that she was commencing hormone treatment for the process of becoming a biological female. In response, Amtrak required Dobre to dress as a male, forbade Dobre to use the women's restroom, referred to Dobre by a male name, and moved Dobre's desk away from public view. Dobre sued, but the District Court dismissed holding that Title VII does not protect transsexuals from such discrimination because the term "sex" should be narrowly construed, according to its plain meaning, which it stated was biological and anatomical sex, a concept distinct from gender.

Tricia B. O'Reilly is a Partner with Connell Foley LLP of New York City and Roseland, New Jersey, and is a member of the firm's Labor and Employment Law and Litigation practice groups. M. Trevor Lyons is associated with Connell Foley LLP, and practices in the firm's Labor and Employment Law group on behalf of management. Please see our website, www.metrocorpcounsel.com, for the footnotes to this article.

Please email the authors at toreilly@connellfoley.com or mlyons@connellfoley.com with questions about this article.