Last updated June 4, 2018.
In the past decade, LGBTQ human rights have dominated the news — and for good reason. From various states approving of civil unions to a crackdown on discrimination based on gender identity, the United States has made significant progress toward extending its equal rights to all. But more needs to be done.
What happens when you are a man who now identifies as a woman, or vice versa, and you are treated differently at work? What counts as discrimination, and what legal remedies do you have?
Read on for a recent case law example from New Jersey, which will discuss sex discrimination and disability discrimination, and how the New Jersey Law Against Discrimination (LAD) protects transgender workers.
Case Law on Gender Identity Discrimination in NJ
In a case of first impression, New Jersey’s Appellate Division held in Enriquez v. West Jersey Health Systems that employers cannot discriminate against an employee because he or she is transgender or transsexual.
The plaintiff in the case, Carla Enriquez, was born biologically a man, and until February 1998, was legally known as “Carlos.” In 1995, while still a man, the plaintiff was hired as the medical director of the defendant outpatient treatment facility (“West Jersey”). Within a year of being hired, the plaintiff commenced an external transformation from male to female by removing all facial hair, sculpting and waxing her eyebrows, piercing her ears, and growing breasts. Enriquez also began manicuring and polishing her nails, growing long hair, and wearing a ponytail.
During this period, Enriquez was confronted several times by her supervisors about her transformation, and was asked to go back to her prior appearance. In June 1997, Enriquez was officially diagnosed with the disorder known as “gender dysphoria,” which is commonly called transsexualism. In October 1997, she was terminated from her position.
Shortly thereafter, Enriquez legally changed her name to Carla, and underwent sex reassignment surgery to become a female. She then sued her former employer for both sex discrimination and disability discrimination under the LAD.
How does sex discrimination apply to gender identity?
The LAD prohibits discrimination on the basis of “sex.” The court in Enriquez v. West Jersey Health Systems chose to interpret “sex discrimination” broadly, and ruled that the concept also encompassed discrimination on the basis of “gender,” which the court defined as “whether a person has qualities that society considers masculine or feminine.”
The court concluded 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.”
See also: When Does Harassment Based on Sexual Orientation Become Actionable Under New Jersey Law?
What is ‘handicap’ discrimination?
Termination of a “handicapped” employee, whose condition does not prevent the employee from doing her job, is actionable under the LAD. The novel issue raised in Enriquez v. West Jersey Health Systems was whether gender dysphoria constitutes a “handicap” for purposes of the Act.
In analyzing the issue, the court noted that gender dysphoria is listed as a gender identity disorder in the Diagnostic and Statistical Manual of Mental Disorders. (This, of course, remains a controversial topic.) The court concluded that “gender dysphoria is a recognized mental or psychological disability that can be demonstrated psychologically by accepted clinical diagnostic techniques and qualifies as a handicap under the LAD.”
New Jersey courts are known for their liberal interpretation of the LAD, and the ruling in Enriquez v. West Jersey Health Systems can only add to that reputation. Once again, the parameters of the anti-discrimination laws have been broadened.
Employers should consider the decision a signal to be very cautious when discharging an employee for any reason relating to that person’s gender or sexuality. Given the court’s expansive conception of “handicap,” employers must also be careful in taking adverse action against any employee with a known and classified mental condition or syndrome.
See also: NJ Disability Discrimination Based Upon Mental Conditions Such as Depression and Anxiety
Get Help with Your Gender Identity Discrimination Case
If you’re being a subject of workplace discrimination due to your gender identity and gender expression or sexual orientation, you should seek legal help. The experienced employment law attorneys of Zatuchni & Associates are dedicated to fighting all forms of discrimination, including discrimination against LGBTQ employees.
Contact us today to schedule a free initial interview.
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