The State of New Jersey recently expanded its anti-discrimination statute, the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 et seq., to include "gender identity or expression" as a protected class effective June 17, 2007. "Gender identity or expression" means having or being perceived as having a gender-related identity or expression whether or not stereotypically associated with a person's assigned sex usually at birth. Based on this definition, the LAD affords protection to transsexuals, cross-dressers, persons who are asexual or persons whose gender is ambiguous or not traditionally feminine or masculine. The LAD now prohibits discrimination against persons on the basis of gender identity or expression in both employment and places of public accommodation.

The new law arose as a result of the New Jersey Appellate Division's ruling in Enriquez v. West Jersey Health Systems, 342 N.J. Super. 501 (App. Div. 2001), where the court found that "gender dysforia" (being uncomfortable with one's gender) is a handicap under the LAD. The Enriquez case involved a physician who was diagnosed with the disorder and alleged that her employer refused to renew her employment contract after she began taking steps to change her gender from male to female. The trial court dismissed her claim finding that she had no cause of action under the LAD. The Appellate Division reinstated her case ruling that gender dysforia diagnosed by a medical professional is a disability under the LAD. The court also found that discrimination on the basis of gender dysforia is a form of sex discrimination. The court reasoned that it was "incomprehensible" that the legislature would bar discrimination against heterosexual men and women, homosexual men and women, bi-sexual men and women, and persons perceived as such, yet would "condone discrimination against men or women who seek to change their anatomical sex because they suffer from a gender-identity disorder." The court concluded that sex discrimination under the LAD includes gender discrimination and provides protection from gender stereotyping and discrimination, including that based on a gender transformation.

What This Means for Employers

The effect and implications of the new law are clear in some respects, yet not in others. It is clear that all New Jersey employers should amend their anti-discrimination and anti-harassment policies to include "gender identity or expression" in their list of protected classes. Employers are advised to check the New Jersey Department of Labor's website for the updated posting required to give notice to employees of the protections afforded under the LAD. Additionally, employers should make sure all training classes and modules explain "gender identity or expression" and inform the workforce that "gender identity or expression" is a protected class under New Jersey's anti-discrimination law.

This change in the law affects other workplace policies as well. When it comes to dress codes, employers are permitted to require employees to adhere to reasonable grooming standards and dress codes, except employers must allow employees to appear, groom and dress consistent with the employee's gender identity or expression. Less clear is the issue of restroom usage. The new legislation requires that places of public accommodation permit transgender individuals to be admitted to such places "based upon their gender identity or expression." This amendment affects the use of single sex facilities such as restrooms and locker rooms.

The practical implications of the new law are somewhat vague. If a man identifies himself as a woman and wears a dress to work, does an employer have a duty to accommodate his request to use the ladies restroom? Will women claim that they are being subject to a hostile work environment in such circumstances? Will employers be forced to bear the expense of installing a separate, single-stall, unisex bathroom to avoid this conundrum? These are questions that remain unanswered and present practical concerns that employers will grapple with in light of the statutory amendment. When faced with these sensitive issues, employers should confer with legal counsel for assistance in navigating through the new and uncharted waters of the LAD.