An Emerging Trend: Gender Identity as a Protected Characteristic

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August 12, 2013

On June 17, 2007, New Jersey joined the ranks of a handful of states that explicitly prohibit transgender discrimination, adding “gender identity and expression” to the list of protected characteristics under the New Jersey Law Against Discrimination (NJLAD). While not widespread, New Jersey’s amendment to the NJLAD represents a growing trend among states adding gender identity bias to the list of prohibited forms of discrimination. In fact, currently pending at the federal level is the Employment Non-Discrimination Act of 2007 (H.R. 2015) which, if passed, would prohibit employment discrimination on the basis of sexual orientation and gender identity.

New Jersey’s new law defines gender identity 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, including transgender status.” Not surprisingly, the class of employees protected by New Jersey’s new law is not yet entirely clear. Therefore, until a body of case law develops, New Jersey employers should treat all transgender employees as protected by the law. This includes not only those employees who have undergone sex assignment surgery, but also those whose dress and manner of expression are consistent with members of the opposite gender.

Notably, New Jersey’s new law explicitly mentions dress codes and grooming standards. For example, while the statute expressly permits employers to continue to require employees to adhere to reasonable workplace appearance, grooming and dress standards, they must do so provided that the employer allows the employee “to appear, groom and dress consistent with the employee’s gender identity or expression.” Therefore, employers may continue to enforce reasonable dress codes, while allowing employees to dress and groom themselves in conformity with the gender with which they associate—not necessarily the gender they were born with.

Legislatures are not the only governmental bodies making efforts to provide protection for gender identity issues that arise in the workplace. Several federal courts recently ruled that transgender plaintiffs can state claims for sex discrimination under Title VII if they can demonstrate that they were discriminated against for failing to act in accordance with or identify with their perceived sex or gender.

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Employers must also be aware that gender identity disorder or gender dysphoria may be considered a “disability.” While not recognized as a disability under the Americans with Disabilities Act, gender dysphoria is a disability under certain state laws including New Jersey, New York, Connecticut and California. Therefore, state law must be considered before taking any adverse employment action against an employee or applicant for employment who suffers from gender identity disorder or gender dysphoria.

The law surrounding protection for transgender employees remains unsettled in many jurisdictions. However, employers cannot turn a blind eye to the issues that gender identity presents in the workplace. What does this mean for employers? New Jersey employers should revise handbooks, postings and EEO policies to include gender identity and expression among the protected characteristics. In addition, they should include gender identity and expression issues as part of regular anti-harassment and anti-discrimination training. Moreover, in light of the recent trend to protect transgender individuals, even companies located outside of New Jersey may want to consider revising their policies and training their supervisors on the issues surrounding gender identity in the workplace.

If you have any questions regarding how these issues affect your company, please contact a member of Blank Rome LLP’s Employment, Benefits and Labor Practice Group.

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