Employers in New Jersey are prohibited from discriminating against an employee because of his or her “gender identity or expression” under amendments to the New Jersey Law Against Discrimination (NJLAD) that take effect today.  Accordingly, New Jersey employers must make appropriate modifications to their EEO policies and become educated on issues and terminology with which they may not be familiar. 
 
The NJLAD amendments define “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.”  The class of employees protected by the new law is not yet entirely clear.  According to certain advocacy groups, “gender identity” means “[a] person’s innate, deeply felt psychological identification as male or female, which may or may not correspond to the person’s body or assigned sex at birth (meaning what sex was listed on a person’s birth certificate).”  On the other hand, these groups identify “gender expression” as “all external characteristics and behaviors that are socially defined as either masculine or feminine, such as dress, mannerisms, physical characteristics and speech patterns.” 
 
Until a body of case law develops to flesh out the contours of the new law, employers should tread carefully.  In general, employers should treat all transgendered employees as protected by the new law.  This includes not only those employees who have undergone sex reassignment surgery, but also those whose dress and manner of expression are consistent with members of the opposite gender. 
 
Employers also should note the distinction between “gender identity or expression” and “sexual orientation,” which has been a protected class under the NJLAD for some time.  One’s sexual orientation refers to a person’s physical and/or emotional attraction to the same and/or opposite gender, while gender identity or expression pertains to how an individual views himself or herself, or how that individual is viewed by others. 
 
One notable aspect of the new law involves dress codes and grooming standards.  The statute specifically permits employers to continue to require employees to adhere to reasonable workplace appearance, grooming and dress standards, provided that the employer allows an employee “to appear, groom and dress consistent with the employee’s gender identity or expression.”  Thus, employers may continue to enforce reasonable dress codes, but they must allow each employee to dress and groom themselves in conformity with the gender with which they associate.
 
The NJLAD amendments also modify the rules pertaining to places of public accommodation, such as shopping malls and restaurants.  Generally, the NJLAD prohibits owners, managers and employees of places of public accommodation from withholding or denying to any person any of the “accommodations, advantages, or privileges thereof.”  Notwithstanding this general rule, the NJLAD has historically carved out an exception for single-sex facilities such as restrooms and dressing rooms – men could be denied access to women’s restrooms and changing rooms, and vice versa.  Under the new amendments, places of public accommodation must admit individuals based on their gender identity or expression.  Thus, a male who identifies with the female gender must be allowed to use a restroom established for women, while a female who identifies with the male gender has the right to use the men’s restroom. 
 
Presently, it is unclear whether employers must adhere to the same rule concerning restrooms and changing rooms that applies to places of public accommodation.  Informally, the New Jersey Division on Civil Rights has stated that employers also must make restrooms available to their employees based on their gender identity or expression.  However, until the Legislature clarifies its meaning, or a New Jersey court issues an opinion on the topic, the obligation of employers to allow employees to use restrooms designated for employees of the opposite gender will remain an open question.  Where feasible, employers may want to consider making one-person restrooms available to their employees, so that any employee concerned about privacy can have access to a private restroom facility. 
 
Also, employers should revise their handbooks, postings and EEO policies to include gender identity and expression among the protected categories.  They also should discuss gender identity and expression issues as part of their regular EEO, diversity and harassment training. 
 
The New Jersey Division on Civil Rights makes available on its website (http://www.nj.gov/lps/dcr/posters.html) posters intended to assist New Jersey employers to comply with their statutory requirements.  We encourage you to visit this website and take advantage of the materials provided therein.  Should you have any additional questions about this statute or its ramifications, please contact the Ogletree Deakins attorney with whom you normally work or the Client Services Department at 866-287-2576 or via email at clientservices@ogletreedeakins.com.

Note: This article was published in the June 18, 2007 issue of the New Jersey eAuthority.


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