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

Wednesday, August 1, 2007 - 01:00

Part I of this article, appearing in the July issue of The Metropolitan Corporate Counsel, discussed recent amendments to New Jersey legislation and New Jersey case law as well as Title VII and federal case law on the subject of sexual discrimination.

IV. Restrooms, Locker Rooms And Shower Facilities.

The extension of anti-discrimination laws to cover transgender individuals creates a unique set of issues that the courts will have to resolve in the near future.1 For instance, transgender restroom, locker room and shower facility use may raise concerns among a transgender employee's co-workers. Generally, courts addressing this issue have rejected the notion that an employer is required to permit transgender employees to use opposite sex facilities. In fact, several cases throughout the nation have already dealt with this issue, and have generally found for employers who object to such use based upon the protestations of other workers that their personal privacy interests were being compromised.

The Minnesota Supreme Court faced this very issue in Goins v. West Group, 635 N.W.2d 717 (Minn. 2001). Similar to New Jersey's amended LAD, Minnesota's Human Rights Act protects against discrimination based upon "sexual orientation." Sexual orientation is defined to include "having or being perceived as having a self-image or identity not traditionally associated with one's biological male or femaleness." Thus transgender individuals are a protected class under the Minnesota statute. In Goins a transgender employee in the process of converting from a biological male to a female, but still possessing male genitalia, sued stating that this statutory language required his employer to allow him to use a bathroom consistent with his self-image of gender or the female bathroom. His employer had required the employee to use the male bathroom after complaints were received from several female employees. The Supreme Court of Minnesota rejected the plaintiff's argument stating that the statutory language did not require or prohibit an employer's discretion to designate restrooms according to biological gender, and that the statute required only that the employer provide an adequate and sanitary restroom to transgender persons.

Similarly, while the case was ultimately decided on different grounds, in Etitsy v. Utah Transit Authority , 2005 WL 1505610 (D. Utah, June 25, 2005), the District Court for the District of Utah identified some of the competing interests at stake:

Defendant also points out, and the Court agrees, that no study is necessary to conclude that many women would be upset, embarrassed, and even concerned for their safety if a man used the public restroom designated exclusively for women. Concerns about privacy, safety and propriety are the reasons that gender specific restrooms are universally accepted in our society.2

Ultimately, the Court in Etitsy found that the employer imposed a biological sex only bathroom policy because of fears of potential liability to female employees for sexual harassment and privacy issues, and not because of bias against transsexuals in violation of Title VII of the Civil Rights of 1964.

Similarly, in Johnson v. Fresh Mark, Inc., 337 F.Supp.2d 996 (N.D. Ohio 2003), aff'd , 98 Fed. Appx. 461 (6th Cir. 2004), the employer hired a preoperative transsexual assuming that he was a female. Coworkers subsequently complained, however, that he was using both the male and female bathrooms. The employer asked the employee for medical clarification of which bathroom was appropriate for him to use. When medical clarification was not provided, the employer asked the employee to use a restroom consistent with the employee's driver license, and that action was upheld by the District Court as non-discriminatory. Likewise, in Hispanic Aids Forum v. Estate of Joseph Bruno, 16 A.D.3d 294, 792 N.Y.S.2d 43 (App. Div. 1st Dep't 2005), a landlord refused to lease space to a Latino advocacy group because of complaints by other tenants that the transgender individuals who patronized the Forum were using public bathrooms based upon their expressed sexual identity and not their biological sex. Expressly referring to Goins , the Court held that requiring individuals to use gender-specific restrooms based upon biological sex rather than biological self-image is not discriminatory, and therefore did not violate the New York State or New York City Human Rights Law.

Also interesting is Cruzan v. Minneapolis Public School System, 165 F. Supp. 2d 964 (D. Minn. 2001), aff'd, 294 F.3d 981 (8th Cir. 2002). In that case a school system was sued for religious discrimination by a woman after it permitted a transgender individual to use the woman's faculty bathroom, and the plaintiff encountered the transgender individual in the bathroom. The woman claimed that it violated her religious beliefs to have to share bathroom facilities with members of the opposite sex, and she subsequently brought suit under Title VII and the Minnesota's Human Rights Act against the school system. Her case was summarily dismissed primarily because she could not show an adverse employment action resulting from the school system's decision to permit a transgender individual to use a female bathroom. Specifically, the Court found that the employer's actions did not affect her title, salary or benefits.

New Jersey's LAD, however, expressly prohibits public accommodation discrimination on the basis of creed. Accordingly, a claim similar to that asserted in Cruzan could potentially be actionable under the LAD, if an individual could show that she was not being provided with an adequate restroom by her employer that complied with her religious beliefs. Therefore, while the reach and application of the new legislation is uncertain, what does seem certain is that it is only a matter of time until New Jersey Courts will be called upon to resolve these types of issues and balance these competing interests.

V. Implications And Recommendations

In light of the recent amendment to New Jersey's LAD, employers conducting business or employing individuals in New Jersey should:

1. Amend their policies, postings, employee handbook provisions, and training programs regarding discrimination and harassment to include "gender identity or expression" as a protected category. In addition, annual Equal Employment Opportunity ("EEO"), anti-discrimination and harassment training for 2007 should highlight this change in the law and its potential ramifications. This update is particularly important for human resource and supervisory personnel;

2. Consider adopting gender transitioning guidelines to provide information and guidance to employees, managers and human resources personnel who will be working together to ensure that the transitioning employee understands, and is comfortable with, the transitioning process in the workplace. A helpful resource on this subject is the Human Rights Campaign's "Workplace Gender Transition Guidelines For Transgender Employees, Managers and Human Resource Professionals."3 Any such guidelines should outline a specific procedure for addressing the transitioning employee's needs, addressing inquiries and communications from co-workers, and providing leave for medical procedures. Important considerations in drafting any such guidelines include respecting the transitioning employee's right to privacy, and treating his or her request for medical leave and accommodation consistent with the treatment of other medical conditions;

3. To the extent feasible, favor single-stall unisex bathrooms going forward. Additionally, if resources permit, best practices would include also favoring individual showers and changing areas that provide privacy to each worker when changing;

4. Review dress code policies and same-sex facility use policies in the workplace to ensure compliance with the new law, and expand EEO, anti-discrimination and harassment training to discuss these issues as potential hot spots for conflict in the workplace. The identification of these issues as potential hot spots is particularly important for human resource and supervisory personnel; and

5. Consult with counsel before making any decision aimed at balancing a transgender employee's LAD rights and the personal privacy rights of other employees.

Over the coming months and years, employers and their legal counsel should pay close attention to judicial decisions interpreting and applying the new legislation, which undoubtedly will require a balancing of competing interests in New Jersey's workforce.1 Part I of this Article stated that the new legislation further clarifies that the definition of gender identity or expression "expressly includes 'transgender status.'" The "transgender" terminology was contained in the pre-filed bill, but was removed from P.L. 2006, c. 100, by floor amendment on December 14, 2006. The removal of this terminology did not impact the scope of the protection afforded by the amendment.

2 Etitsy, 2005 WL 1505610 at *5.

3 A copy can be obtained at http://www.hrc.org/Content/NavigationMenu/Work_Life/Get_Informed2/Transgender_Issues/WorkplaceGenderTransitionGuidelines-May2006.pdf.

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