Gender Identification Discrimination

Gender identity discrimination is rampant in the United States, if not the world. Studies show that anywhere from 15 percent to 43 percent of gay people have experienced some type of discrimination in the workplace. Disturbingly, some 90 percent of transgender workers report some form of abuse or mistreatment on the job. Fortunately, here in New Jersey, employers are not permitted to discriminate against an employee because of his or her "gender identity or expression" under the New Jersey Law Against Discrimination (LAD). Note is made of the fact that in July 2014, President Obama signed Executive Order 1148 which explicitly forbids both federal agencies and private firms receiving federal contracts from discrimination based on “gender identity.”

The LAD 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." According to the American Psychology Association gender identity refers to “one’s sense of oneself as male, female or transgender”. (American Psychology Association, 2006). It has also been expressed as when one’s gender identity and biological sex are not congruent, an individual may identify as transsexual or as another transgender category (cf. Gainor, 2000; www.apa.org/pi/lgbt/sexuality-definitions.pdf). It is fair to say that the LAD requires employers to treat all transgendered employees as protected by law, including, but not limited to, persons who have undergone sex reassignment surgery, and those whose ways of expressing themselves and manner of dress are in line with members of the opposite sex.

Employees should be aware that the LAD permits employers to set and enforce reasonable standards and workplace rules related to how workers dress, appear and groom themselves so long as the employer allows an employee to appear, groom and dress consistent with the gender they associate with.

The LAD prohibits owners, managers and employees of places of public accommodation from withholding or denying any person any of the "accommodations, advantages, or privileges thereof." Nonetheless, the LAD makes an exception for single-sex facilities such as restrooms and dressing rooms. Put differently, men can be denied access to women's restrooms and changing rooms, and vice versa. However, places of public accommodation must not deny entry to persons based on their gender identity or expression. Accordingly, a female who identifies as a male must be permitted to use the men’s restroom, while a male who identifies as a woman has the right to use the women’s restroom.

It is worth mentioning in this article that in 2009 the New Jersey Motor Vehicle Commission adopted a policy in which the gender noted on state driver licenses is to reflect the driver’s gender identity or expression, to wit, reflecting the gender the driver considers himself or herself to be. Considering that a driver’s license is often used as a primary identification document all across the country, this DMV policy well reflects the general public policy of the State of New Jersey to provide persons of all types and stripes with the protections afforded by the LAD.

If you believe you have been or are currently being treated differently or hostilely by your employer or a coworker because of your gender identity, then call the skilled employment lawyers at Mashel Law (732) 536-6161 for help, or fill out the contact form on this page. Mashel Law located in Marlboro, New Jersey, is dedicated exclusively to protecting the rights of employees.