January 1, 1900

by Irene N. Komandis

The Act codifies an Appellate Court decision in which Enriquez, the Plaintiff, claimed discrimination based on a sex change. In Enriquez v.West Jersey Health System, the Plaintiff, a physician and male-to-female transsexual, alleged discrimination when her employer failed to renew her employment contract, allegedly due to the physical changes Plaintiff was undergoing.

 The Appellate Division, in interpreting the scope of LAD, held that “[i]t 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…but would condone discrimination against men or women who seek to change their anatomical sex because they suffer from a gender identity disorder.” In so finding, the Court held that sex discrimination under the LAD includes gender discrimination thereby affording Plaintiff protection under LAD for stereotyping or in any way discriminating against a man or woman who has opted to transform into the opposite sex.

The present amendment to LAD not only codifies the Appellate Division’s holding prohibiting discrimination to employees based on gender identity, but formally makes “gender identity and expression” a protected class under New Jersey law. This means that a person who has transformed through surgical or other means into the opposite gender, or who is in the process of such transformation, is a protected class under our constitution.

Who is Protected Under this Amendment?

Prior to this amendment, LAD already afforded protection from discrimination to employees because of “race, creed, color, national origin, ancestry, age, sex, affectional or sexual orientation, marital status, liability for service in the Armed Forces of the United States, disability or nationality.” With the inclusion of “gender identity or expression” into the Act, the express intent of the legislature is to afford protection to persons, refers to individuals who hold “transgender status.”

Broadly speaking, transgender individuals are those persons whose gender expression and/or gender identity does not accord with the traditional expectations associated with the physical sex of the person. Transgender is an umbrella term which includes, amongst others, transsexuals, transvestites and cross-dressers.

Transgender persons display their transgender status through their physical appearance. For example, a transgender individual may wear clothing that appears contrary to attire typically worn by that individual’s assigned sex. Further, an individual may adopt mannerisms and habits not typically associated with their assigned sex, and may also persistently refer to themselves with names and pronouns inconsistent with their biological gender.

Effect of this New Law on New Jersey Employers

The inclusion of “gender identity and expression” adds yet another consideration to the already expansive list of protected characteristics employers must be conscious of when making employment decisions. Simply put, employers are prohibited from allowing an individual’s “gender identity or expression” from influencing all employment decisions, including, but not limited to hiring, firing, advancement and discipline. Failure to do so could expose an employer to liability from his or her employee, or from a prospective employee.

Additionally, as a protected characteristic under LAD, employers must provide their employees with a workplace that is free from harassment and discrimination stemming from an employee’s gender identity. As such, an employer who discriminates against an employee based on gender identity by failing to safeguard an employee from workplace harassment based on the employee’s gender identity, can be liable under LAD.

Moreover, the Act expressly states that an employer may enact and “require employees to adhere to reasonable workplace appearance, grooming and dress standards,” as are deemed necessary. However, in doing so, the employer is required to permit an employee to “appear, groom and dress” in a manner “consistent with the employee’s gender identity or expression.” This means that an employer can require attire, such as formal business dress in the workplace, but an employer cannot bar a transgender individual from wearing formal attire that would be identified as that worn by the opposite sex.

Steps Employers Should Take to Comply with this Law

To ensure compliance with this new law, New Jersey employers should immediately update their employment handbooks, personnel and disciplinary policies and employee training programs regarding discrimination and harassment to include “gender identity or expression.” Furthermore, an employer should carefully reexamine all workplace dress codes and requirements to ensure full compliance with the new law.

It is without question that the recent addition of “gender identity or expression” as a protected characteristic under LAD will have strong implications for New Jersey employers. To avoid liability, employers must take it upon themselves to begin steps that will ensure full and complete compliance. As such, it is of great importance that New Jersey employers take immediate steps to become fully familiar with the requirements and implications of this new law.

Irene N. Komandis is an associate at Hill Wallack LLP where she is a member of the Litigation Division including the Trial & Insurance Defense Practice Group.