Here is an article in Business Management Daily from an employer's perspective about addressing transgender issues in the workplace. It's generally favorable, but I must disagree with the statement that federal courts are reluctant to extend protection to transgender employees. In fact, more than a dozen federal district courts have ruled in favor of transgender employees, and the 6th Circuit federal Court of Appeals, which includes the states of Kenutcky, Michigan, Ohio and Tennessee, has also ruled that transgender people are entitled to protection.
'Trans'-cending stereotypes: Tackling transgender bias in the workplace - Business Management Daily: You can’t ignore transgender issues. And in New Jersey, you can’t ignore discriminatory behavior and harassment against transgender employees. That would be illegal under the NJLAD, and could result in costly litigation.
To minimize the possibility of discrimination against transgender employees in your workplace, follow these tips:
Train managers and employees to be sensitive and understanding toward transgender employees.
Allow transgender employees to express their preferred gender identity in the workplace.
Treat leaves of absence for sexual reassignment procedures the same as other scheduled medical procedures.
Showing posts with label New Jersey. Show all posts
Showing posts with label New Jersey. Show all posts
Monday, August 22, 2011
Monday, April 25, 2011
Transgender employee can maintain sexual harassment, hostile work environment claims against Home Depot; supervisors failed to take action in response to verbal, physical threats by coworkers | Employment Law Daily
NJ Federal Court: Transgender employee can maintain sexual harassment, hostile work environment claims against Home Depot; supervisors failed to take action in response to verbal, physical threats by coworkers | Employment Law Daily:
However, she lost the case regarding termination because her lawyer was unable to connect the termination to the harassment.
Full opinion here: http://hr.cch.com/EMPNews/hughes.pdf
Monday, April 11, 2011
New York Times Tells of Trans Job Lawsuit
The New York Times op-ed section brings word of an unusual lawsuit this morning. The Transgender Legal Defense and Education Fund (TLDEF) has brought a lawsuit on behalf of El'Jai Devoureau (first name pronounced like LJ).
El'Jai was hired by a drug testing company to watch testees produce urine samples, presumably to ensure it was done properly and no switching of samples occurred. Word reached his supervisor that he is a transgender man. The supervisor asked for evidence of surgery, and El'Jai said that is private. He was fired.
This is an extremely important lawsuit because the questions to be addressed include whether being male in a particular way specified by the employer is a "bona fide" occupational qualification (BFOQ) and whether El'Jai qualifies as a male. BFOQ lawsuits in regard to sex are rare, and not as simple as they might seem.
El'Jai was hired by a drug testing company to watch testees produce urine samples, presumably to ensure it was done properly and no switching of samples occurred. Word reached his supervisor that he is a transgender man. The supervisor asked for evidence of surgery, and El'Jai said that is private. He was fired.
This is an extremely important lawsuit because the questions to be addressed include whether being male in a particular way specified by the employer is a "bona fide" occupational qualification (BFOQ) and whether El'Jai qualifies as a male. BFOQ lawsuits in regard to sex are rare, and not as simple as they might seem.
It's particularly informative that TLDEF's legal partners in this suit are a major international law firm, Gibson, Dunn & Crutcher, and a highly respected local firm, Stein, McGuire, Pantages & Gigl. Firms like that don't take a case, particularly a pro bono case, unless they've got the law and the facts they see as likely to be successful. Furthermore, as impact litigation, which attempts to create useful precedents and, above all, to do no harm to the interests of the disadvantaged constituency it seeks to help, this one goes straight to the heart of trans advocacy: who is a man?
The complaint specifically states that "He has permanently transitioned to male and his government-issued identification documents reflect the fact that he is male. Defendants hired him as a man."
It should be noted that New Jersey is the only state that has an appellate precedent squarely on point in favor of transsexuals, ruling that a transsexual person is to be considered according to the sex with which he or she identifies. In MT v. JT, 355 A.2d 204 (N.J. App. Div. 1976), a New Jersey appeals court held that "if the anatomical or genital features of a genuine transsexual are made to conform to the person's gender, psyche or psychological sex, then identity by sex must be governed by the congruence of these standards." Almost every other court in the U.S. that has considered the issue has gone in the other direction. While that case involved a question of alimony after divorce, the court in the current case may find this reasoning persuasive, and perhaps even binding. Thus, while bringing a case like this could be extremely dangerous, it's probably better brought in New Jersey more than any other state in the nation.
I've also discussed the BFOQ requirement in past posts. Essentially, it means that being a male is part of the qualifications of the job. This cannot be on the basis of stereotypes, such as that the job requires strength or is dangerous. A woman who has the strength and the ability to do a hard or dangerous job must not be disbarred from doing so by reason of her gender. In the case of watching men give urine samples, the idea, I suppose, is that respect for the privacy of the men requires that they not be subjected to the scrutiny of a female while performing such intimate acts. If El'Jai were a female, that reasoning would hold. As noted, however, the complaint specifically states that "He has permanently transitioned to male and his government-issued identification documents reflect the fact that he is male. Defendants hired him as a man." If El'Jai's employees think he is not a man, is their subjective judgment more pertinent than that of the State of New Jersey?
The complaint more specifically states "As reflected on official government documentation, both federally and at the state level, he is appropriately recognized as male, including on his driver's license (New Jersey), his Social Security records (federal), and his birth certificate (Georgia)."
I think it interesting that there are three counts to the complaint, one for sex discrimination, one for gender identity discrimination and one for disability discrimination. While some legal advocates have indicated that they would not bring a claim based on disability discrimination because it may be considered by some to be disrespectful and perhaps even undercutting to the client's claim, I agree that this is an appropriate legal claim in most instances because it underscores the nature of the discrimination against transsexuals -- not only discrimination based on physical attributes, but discrimination based on psychological identity. But reasonable people can disagree on that issue.
Kudos to Michael Silverman of TLDEF, and to the other intrepid attorneys who will no doubt provide excellent representation to Mr. Devoureau.
The complaint specifically states that "He has permanently transitioned to male and his government-issued identification documents reflect the fact that he is male. Defendants hired him as a man."
It should be noted that New Jersey is the only state that has an appellate precedent squarely on point in favor of transsexuals, ruling that a transsexual person is to be considered according to the sex with which he or she identifies. In MT v. JT, 355 A.2d 204 (N.J. App. Div. 1976), a New Jersey appeals court held that "if the anatomical or genital features of a genuine transsexual are made to conform to the person's gender, psyche or psychological sex, then identity by sex must be governed by the congruence of these standards." Almost every other court in the U.S. that has considered the issue has gone in the other direction. While that case involved a question of alimony after divorce, the court in the current case may find this reasoning persuasive, and perhaps even binding. Thus, while bringing a case like this could be extremely dangerous, it's probably better brought in New Jersey more than any other state in the nation.
I've also discussed the BFOQ requirement in past posts. Essentially, it means that being a male is part of the qualifications of the job. This cannot be on the basis of stereotypes, such as that the job requires strength or is dangerous. A woman who has the strength and the ability to do a hard or dangerous job must not be disbarred from doing so by reason of her gender. In the case of watching men give urine samples, the idea, I suppose, is that respect for the privacy of the men requires that they not be subjected to the scrutiny of a female while performing such intimate acts. If El'Jai were a female, that reasoning would hold. As noted, however, the complaint specifically states that "He has permanently transitioned to male and his government-issued identification documents reflect the fact that he is male. Defendants hired him as a man." If El'Jai's employees think he is not a man, is their subjective judgment more pertinent than that of the State of New Jersey?
The complaint more specifically states "As reflected on official government documentation, both federally and at the state level, he is appropriately recognized as male, including on his driver's license (New Jersey), his Social Security records (federal), and his birth certificate (Georgia)."
I think it interesting that there are three counts to the complaint, one for sex discrimination, one for gender identity discrimination and one for disability discrimination. While some legal advocates have indicated that they would not bring a claim based on disability discrimination because it may be considered by some to be disrespectful and perhaps even undercutting to the client's claim, I agree that this is an appropriate legal claim in most instances because it underscores the nature of the discrimination against transsexuals -- not only discrimination based on physical attributes, but discrimination based on psychological identity. But reasonable people can disagree on that issue.
Kudos to Michael Silverman of TLDEF, and to the other intrepid attorneys who will no doubt provide excellent representation to Mr. Devoureau.
Friday, December 15, 2006
More on the NJ law
I made a mistake yesterday in writing that the language included "gender identity and expression." The bill used the phrase "gender identity OR expression." "OR" might seem an unimportant word, but if you asked for either ketchup OR mustard on your hotdog and you got both ketchup AND mustard, you'd know why OR is an important word.
Thus, using the "OR" formulation, I am protected from discrimination whether I identify as a sex different from my sex assigned at birth, OR if I simply express my gender in a nontraditional fashion.
Also, it turns out that the version on the NJ Legislature website wasn't the actual text of the bill that was passed. The correct version is here: http://www.njleg.state.nj.us/2006/Bills/S0500/362_I1.HTM The main difference seems to be that the language in 10:5-5 (rr) regarding "transgender status" was removed. As you saw from my post yesterday, I was a bit concerned about the "transgender status" language.
Here's an except from a letter from Lisa Mottet, legislative lawyer for the Transgender Civil Rights Project of the National Gay and Lesbian Task Force. In it, she delineates why the language should be removed, and I think she did an excellent job of explaining clearly and comprehensively why the term "transgender" is not useful for legislative drafting.
However, the amendment that would add "Gender identity or expression includes transgender status" is inadvisable and I urge the Senate to reconsider its inclusion.
My understanding is that this amendment was suggested to clarify who was intended to benefit from this legislation. While laudable in goal, the consequences of including this phrase are unpredictable, and I and my colleagues fear potentially damaging.
During my review of this amendment, I communicated with two other transgender rights legal experts, Shannon Minter, Legal Director of the National Center for Lesbian Rights, author of Transgender Equality: A Handbook for Activists and Policymakers (2000) and editor of Transgender Rights (University of Minnesota Press, 2006), and Cole Thaler, Staff Attorney for Transgender Rights at Lambda Legal. I also conferred with the National Center for Transgender Equality. I am authorized to pass on our joint concerns to you as the Senate and Assembly further consider this legislation and amendments.
There are several interrelated reasons I and my colleagues are concerned. The first reason is that the meaning of the term "transgender" is in constantly in flux and is likely to be historically limited. The term "transgenderist" was developed decades ago to refer to people who crossdressed but did not want or could not access sex reassignment surgery. Over the following decades, "transsexual" was reserved for people who had surgery and "transgender" meant those who did not. "Transvestite" was often used as an umbrella term. In the 1990s, transgender started to become an umbrella term that referred to the entire community: transsexuals, crossdressers,
androgynous people, and gender-nonconforming people. "Transsexual" came to mean anyone who transitions from one gender to the other socially and/or medically
(surgery not required).
Although most LGBT activists still use the term "transgender" as an umbrella term, in my experience, the general public and LGBT people who are not activists tend to believe that transgender and transsexual are precise synonyms. In addition, there is much current debate within the LGBT community about whether or not the term "transgender" inherently includes "gender non-conforming people." Different LGBT and transgender organizations use these terms differently. For example, the Sylvia Rivera Law Project, a legal services group for transgender people in New York, consistently uses “transgender and gender non-conforming people” instead of just "transgender" as my organization chooses to do.
As another demonstration of how quickly this term is changing meaning, in 2000 my
organization published Transgender Equality and in it, we included drag queens,
drag kings and intersex people in the transgender umbrella. In our 2003
publication, Transitioning Our Shelters: A Guide to Making Homeless Shelters
Safe for Transgender People, we made the decision to remove those identities
from the definition of transgender. If history is to be any guide, I expect the
definition of transgender within the transgender community, in the LGBT
community, and in the larger public arena will continue to be debated. And, I
believe the meaning of the term will continue to evolve, and it is possible that
it will fall out of use entirely.
Moreover, I am concerned that "transgender" may not retain its positive, non-derogatory meaning. In an example from the transgender context, in the early 1980s, Seattle passed a trans-inclusive nondiscrimination law using the broad term (they thought): transvestite. This term has since taken a negative and more limited connotation, causing the Seattle City Council to need to revise its nondiscrimination law only about twenty years later. Terms from other contexts involving groups of people who experience discrimination that demonstrate my concern about popular terminology acquiring a negative connotation include "colored people" and "handicapped." "Transgender" may not always have a positive connotation and may
fall out of favor.
The second concern is that the bill, before the amendment, utilized the best approach for discrimination protections: it used terminology that covers all people, rather than a specific, protected group of people. American non-discrimination laws are generally framed to prohibit discrimination on the basis of certain characteristics, like sex or race, not specific examples of people within those categories, like women or African-Americans. Just as it was unnecessary and would have been inadvisable to add "Race includes black status" to race discrimination laws, this "transgender status" clarifying amendment could unintentionally have a
limiting or confusing effect on interpretations of the law. Adding just this one
group-based identity to the bill’s language makes the bill conceptually
incoherent and inconsistent with similar laws; either problem could negatively
affect the interpretation of its provisions.
Our third concern is that this language is out-of-step with other laws protecting transgender and gender non-conforming people from discrimination. Eight states have passed similar laws, and none of them use the term "transgender people" or any similar term. No other state legislature, administrative agency or court has found that this type of clarifying amendment was necessary, nor has there been confusion that transgender people are not covered by these laws. Also, in drafting the federal Employment Non-Discrimination Act, which is expected to be introduced
this Spring, the LGBT attorneys involved in drafting, including myself,
specifically rejected using the term "transgender" for many of the reasons
covered in this letter. For consistency throughout the nation, and for New
Jersey to be in-step with the federal bill that will eventually become law, it
is best that New Jersey use relatively similar language. With similar language
throughout the U.S., courts can utilize each other’s interpretations to develop
a common case law that all jurisdictions can draw upon. For your reference, the
definitional language of the eight states is attached as an Appendix.
Our fourth concern is about the term "status." How it would be interpreted in this context is unclear. Would transgender people have to prove that they have achieved "status?" Would someone in the early stages of transition (often when discrimination occurs) qualify as having attained that status? "Status" implies a fixity that does not capture or address the reality of discrimination against transgender people.
Our fifth concern is not about New Jersey's interpretations, but is about future
interpretations of other state and federal laws. Including this term in New
Jersey's law could cast doubt on what is covered by laws in other jurisdictions
that do not include such language. It could beg the question, are transgender
people not covered if the law only includes "gender identity or expression?"
From a national perspective, the language used in New Jersey could influence
other jurisdictions to either adopt the same language (cause for concern by
itself for the above-mentioned reasons) and/or could negatively affect the
interpretation of similar laws that lack New Jersey's additional
sentence.
Thus, in conclusion, nondiscrimination laws should use terminology that is not subject to historical limitations and that is sure to cover everyone exhibiting the protected characteristic, regardless if they are amongst the class or group of people most often discriminated against. Furthermore, New Jersey’s statutory scheme is best served by adopting language similar to those eight other states that have already enacted protections based on gender identity and/or expression. No other state has used the term "transgender" or "transgender status" in its discrimination law and doing so opens up the bill to unknown and potentially negative interpretations in the future.
----------------------------
In an appendix to the letter, she adds the definitions for each state law on the books. That's a useful thing to have all in one place, so I'm adding it here.
California (2003)
Cal. Gov’t Code § 12926(p):
“Sex” includes, but is not limited to, pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. “Sex” also includes, but is not limited to, a person's gender, as defined in Section 422.56 of the Penal Code.
Cal. Penal Code, § 422.56:"Gender" means sex, and includes a person's gender identity and gender related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth.
Hawai’i (housing and public accommodations discrimination only) (2005)
HI ST § 515-2:
"Gender identity or expression" includes a person's actual or perceived gender, as well as a person's gender identity, gender-related self-image, gender-related appearance, or gender-related expression, regardless of whether that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person's sex at birth.
Illinois (2005)
775 ILCS 5/1-102:
“Sexual orientation” means actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity, whether or not traditionally associated with the person's designated sex at birth. "Sexual orientation" does not include a physical or sexual attraction to a minor by an adult.
Maine (2005)
ME ST T. 5 § 4553(9-C):
“Sexual orientation means a person’s actual or perceived heterosexuality, bisexuality, homosexuality or gender identity or expression.
Minnesota (1993)
Minn. Stat. Ann. § 363A.03(44):
“Sexual orientation means having or being perceived as having an emotional, physical, or sexual attachment to another person without regard to the sex of that person or having or being perceived as having an orientation for such attachment, or having or being perceived as having a self-image or identity not traditionally associated with one's biological maleness or femaleness. “Sexual orientation” does not include a physical or sexual attachment to children by an adult.
New Mexico (2003)
N.M. Stat. Ann. § 28-1-2(Q):
“Gender identity” means a person’s self-perception, or perception of that person by another, of the person’s identity as a male or female based upon the person’s appearance, behavior or physical characteristics that are in accord with or opposed to the person’s physical anatomy, chromosomal sex or sex at birth.
Rhode Island (2001)
R.I. Gen. Laws § 11-24-2.1(l):
The term “gender identity or expression” includes a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self image, gender-related appearance, or gender-related expression; whether or not that gender identity, gender-related self image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person’s sex at birth.
Washington State (2006)
Wash. Rev. Code § 49.60.040 (15):
“Sexual orientation” means heterosexuality, homosexuality, bisexuality, and gender expression or identity. As used in this definition, “gender expression or identity” means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.
Thus, using the "OR" formulation, I am protected from discrimination whether I identify as a sex different from my sex assigned at birth, OR if I simply express my gender in a nontraditional fashion.
Also, it turns out that the version on the NJ Legislature website wasn't the actual text of the bill that was passed. The correct version is here: http://www.njleg.state.nj.us/2006/Bills/S0500/362_I1.HTM The main difference seems to be that the language in 10:5-5 (rr) regarding "transgender status" was removed. As you saw from my post yesterday, I was a bit concerned about the "transgender status" language.
Here's an except from a letter from Lisa Mottet, legislative lawyer for the Transgender Civil Rights Project of the National Gay and Lesbian Task Force. In it, she delineates why the language should be removed, and I think she did an excellent job of explaining clearly and comprehensively why the term "transgender" is not useful for legislative drafting.
However, the amendment that would add "Gender identity or expression includes transgender status" is inadvisable and I urge the Senate to reconsider its inclusion.
My understanding is that this amendment was suggested to clarify who was intended to benefit from this legislation. While laudable in goal, the consequences of including this phrase are unpredictable, and I and my colleagues fear potentially damaging.
During my review of this amendment, I communicated with two other transgender rights legal experts, Shannon Minter, Legal Director of the National Center for Lesbian Rights, author of Transgender Equality: A Handbook for Activists and Policymakers (2000) and editor of Transgender Rights (University of Minnesota Press, 2006), and Cole Thaler, Staff Attorney for Transgender Rights at Lambda Legal. I also conferred with the National Center for Transgender Equality. I am authorized to pass on our joint concerns to you as the Senate and Assembly further consider this legislation and amendments.
There are several interrelated reasons I and my colleagues are concerned. The first reason is that the meaning of the term "transgender" is in constantly in flux and is likely to be historically limited. The term "transgenderist" was developed decades ago to refer to people who crossdressed but did not want or could not access sex reassignment surgery. Over the following decades, "transsexual" was reserved for people who had surgery and "transgender" meant those who did not. "Transvestite" was often used as an umbrella term. In the 1990s, transgender started to become an umbrella term that referred to the entire community: transsexuals, crossdressers,
androgynous people, and gender-nonconforming people. "Transsexual" came to mean anyone who transitions from one gender to the other socially and/or medically
(surgery not required).
Although most LGBT activists still use the term "transgender" as an umbrella term, in my experience, the general public and LGBT people who are not activists tend to believe that transgender and transsexual are precise synonyms. In addition, there is much current debate within the LGBT community about whether or not the term "transgender" inherently includes "gender non-conforming people." Different LGBT and transgender organizations use these terms differently. For example, the Sylvia Rivera Law Project, a legal services group for transgender people in New York, consistently uses “transgender and gender non-conforming people” instead of just "transgender" as my organization chooses to do.
As another demonstration of how quickly this term is changing meaning, in 2000 my
organization published Transgender Equality and in it, we included drag queens,
drag kings and intersex people in the transgender umbrella. In our 2003
publication, Transitioning Our Shelters: A Guide to Making Homeless Shelters
Safe for Transgender People, we made the decision to remove those identities
from the definition of transgender. If history is to be any guide, I expect the
definition of transgender within the transgender community, in the LGBT
community, and in the larger public arena will continue to be debated. And, I
believe the meaning of the term will continue to evolve, and it is possible that
it will fall out of use entirely.
Moreover, I am concerned that "transgender" may not retain its positive, non-derogatory meaning. In an example from the transgender context, in the early 1980s, Seattle passed a trans-inclusive nondiscrimination law using the broad term (they thought): transvestite. This term has since taken a negative and more limited connotation, causing the Seattle City Council to need to revise its nondiscrimination law only about twenty years later. Terms from other contexts involving groups of people who experience discrimination that demonstrate my concern about popular terminology acquiring a negative connotation include "colored people" and "handicapped." "Transgender" may not always have a positive connotation and may
fall out of favor.
The second concern is that the bill, before the amendment, utilized the best approach for discrimination protections: it used terminology that covers all people, rather than a specific, protected group of people. American non-discrimination laws are generally framed to prohibit discrimination on the basis of certain characteristics, like sex or race, not specific examples of people within those categories, like women or African-Americans. Just as it was unnecessary and would have been inadvisable to add "Race includes black status" to race discrimination laws, this "transgender status" clarifying amendment could unintentionally have a
limiting or confusing effect on interpretations of the law. Adding just this one
group-based identity to the bill’s language makes the bill conceptually
incoherent and inconsistent with similar laws; either problem could negatively
affect the interpretation of its provisions.
Our third concern is that this language is out-of-step with other laws protecting transgender and gender non-conforming people from discrimination. Eight states have passed similar laws, and none of them use the term "transgender people" or any similar term. No other state legislature, administrative agency or court has found that this type of clarifying amendment was necessary, nor has there been confusion that transgender people are not covered by these laws. Also, in drafting the federal Employment Non-Discrimination Act, which is expected to be introduced
this Spring, the LGBT attorneys involved in drafting, including myself,
specifically rejected using the term "transgender" for many of the reasons
covered in this letter. For consistency throughout the nation, and for New
Jersey to be in-step with the federal bill that will eventually become law, it
is best that New Jersey use relatively similar language. With similar language
throughout the U.S., courts can utilize each other’s interpretations to develop
a common case law that all jurisdictions can draw upon. For your reference, the
definitional language of the eight states is attached as an Appendix.
Our fourth concern is about the term "status." How it would be interpreted in this context is unclear. Would transgender people have to prove that they have achieved "status?" Would someone in the early stages of transition (often when discrimination occurs) qualify as having attained that status? "Status" implies a fixity that does not capture or address the reality of discrimination against transgender people.
Our fifth concern is not about New Jersey's interpretations, but is about future
interpretations of other state and federal laws. Including this term in New
Jersey's law could cast doubt on what is covered by laws in other jurisdictions
that do not include such language. It could beg the question, are transgender
people not covered if the law only includes "gender identity or expression?"
From a national perspective, the language used in New Jersey could influence
other jurisdictions to either adopt the same language (cause for concern by
itself for the above-mentioned reasons) and/or could negatively affect the
interpretation of similar laws that lack New Jersey's additional
sentence.
Thus, in conclusion, nondiscrimination laws should use terminology that is not subject to historical limitations and that is sure to cover everyone exhibiting the protected characteristic, regardless if they are amongst the class or group of people most often discriminated against. Furthermore, New Jersey’s statutory scheme is best served by adopting language similar to those eight other states that have already enacted protections based on gender identity and/or expression. No other state has used the term "transgender" or "transgender status" in its discrimination law and doing so opens up the bill to unknown and potentially negative interpretations in the future.
----------------------------
In an appendix to the letter, she adds the definitions for each state law on the books. That's a useful thing to have all in one place, so I'm adding it here.
California (2003)
Cal. Gov’t Code § 12926(p):
“Sex” includes, but is not limited to, pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. “Sex” also includes, but is not limited to, a person's gender, as defined in Section 422.56 of the Penal Code.
Cal. Penal Code, § 422.56:"Gender" means sex, and includes a person's gender identity and gender related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth.
Hawai’i (housing and public accommodations discrimination only) (2005)
HI ST § 515-2:
"Gender identity or expression" includes a person's actual or perceived gender, as well as a person's gender identity, gender-related self-image, gender-related appearance, or gender-related expression, regardless of whether that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person's sex at birth.
Illinois (2005)
775 ILCS 5/1-102:
“Sexual orientation” means actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity, whether or not traditionally associated with the person's designated sex at birth. "Sexual orientation" does not include a physical or sexual attraction to a minor by an adult.
Maine (2005)
ME ST T. 5 § 4553(9-C):
“Sexual orientation means a person’s actual or perceived heterosexuality, bisexuality, homosexuality or gender identity or expression.
Minnesota (1993)
Minn. Stat. Ann. § 363A.03(44):
“Sexual orientation means having or being perceived as having an emotional, physical, or sexual attachment to another person without regard to the sex of that person or having or being perceived as having an orientation for such attachment, or having or being perceived as having a self-image or identity not traditionally associated with one's biological maleness or femaleness. “Sexual orientation” does not include a physical or sexual attachment to children by an adult.
New Mexico (2003)
N.M. Stat. Ann. § 28-1-2(Q):
“Gender identity” means a person’s self-perception, or perception of that person by another, of the person’s identity as a male or female based upon the person’s appearance, behavior or physical characteristics that are in accord with or opposed to the person’s physical anatomy, chromosomal sex or sex at birth.
Rhode Island (2001)
R.I. Gen. Laws § 11-24-2.1(l):
The term “gender identity or expression” includes a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self image, gender-related appearance, or gender-related expression; whether or not that gender identity, gender-related self image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person’s sex at birth.
Washington State (2006)
Wash. Rev. Code § 49.60.040 (15):
“Sexual orientation” means heterosexuality, homosexuality, bisexuality, and gender expression or identity. As used in this definition, “gender expression or identity” means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.
Thursday, December 14, 2006
New Jersey passes "gender identity" protection
New Jersey has enacted into law a bill that adds "gender identity and expression" to the list of classes protected from discrimination.
New Jersey’s Senate passed bill S362 on Monday, December 11, by a vote of 31-5. The Assembly version, A930, was substituted by the Senate version, S362, and as such, passed New Jersey’s lower house today by a vote of 69-5. It now goes to Governor Jon S. Corzine, who is expected to sign the bill into law. The text of S362 can be found at http://www.njleg.state.nj.us/2006/Bills/S0500/362_R1.HTM The bill will take effect on June 12, 2007, 180 days after today's passage.
The bill inserts "gender identity and expression" into a number of existing laws:
- Title 10:2, which requires public works contracts to contain a clause in which the contractor agrees not to discriminate in employment, violation of which may result in contract termination, and Title 10:5-32, which prohibits awarding a public contract to any firm that has not agreed and guaranteed not to discriminate.
- Title 10:5-5-4, which prohibits discrimination by public accommodations, such as restaurants and theaters and in housing.
- Title 10:5-9.1, which prohibits discrimination in public housing
- Title 10:5-12, which prohibits discrimination by employers, labor unions, public accommodations, such as restaurants and theaters, in housing or in credit and lending transactions.
Thus, it's not just non-discrimination in employment, but in public contracts, public accommodations, housing, and credit and lending transactions. These provisions are typical of a comprehensive non-discrimination bill. Not all of the states that have passed legislation prohibiting discrimination based on gender identity have included such comprehensive language. An example of this is Hawaii, which prohibits discrimination based on gender in housing, but not in employment.
Now for the "defining moment" -- the bill's definition of "gender identity and expression." The bill 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. 'Gender identity or expression' includes transgender status." Title 10:5-5(rr) The part about "whether or not stereotypically associated with a person's sex at birth" is typical. But it's unusual to have a definition include the words it is defining. The key question whenever this comes up is whether "gender identity or expression" includes someone who lives part-time in different gender roles. The other atypical item is that "gender identity or expression includes transgender status." The term "transgender" is inherently ambiguous. http://jweissdiary.blogspot.com/2006/03/issue-what-does-transgender-mean.htmlFor that reason, it is rarely included in legislation. It is included in the recent DC regs, and I had a little discussion there about the term. http://jweissdiary.blogspot.com/2006/11/dc-regulations-prohibiting-gender.html Here, transgender status is undefined in the bill, leaving it open to interpretation, so it may be difficult for courts to decide what constitutes transgender status.
This prompts a question that I often get in my consulting practice: what if someone just pretends to be have a female gender identity, but they do so falsely in order to obtain sexual gratification from the presence of females? My answer is that I have never heard of a situation where a person used a false claim of gender identity for that or any other purpose. I've certainly heard of a few cases where a man dressed as a woman to commit a crime and try to escape detection (though of course, having heard of the cases, the attempts were obviously not successful). I've also heard about men committing crimes in women's bathrooms. But those men didn't bother to dress up in women's clothing because their defense was to escape detection, not to make false claims about gender identity. More significantly, those cases were not spurred by the passage of a gender identity non-discrimination law. Now what if, you think, what if some crafty male, spurred by this new law, were to come up with a lascivious plan to lurk in the women's restroom and then, when confronted by the police about his harassing behavior, claim that he was entitled to commit harassment because of his gender identity? The answer is that harassing behavior is not permitted regardless of one's gender. If I am standing in the women's restroom and the woman next to me puts her hand on my thigh, that's harassment, and it doesn't matter if she claims gender identity issues or not.
The bill contains a number of provisions that preserve traditional understandings of sexual difference in public accommodations and employment.
Title 10:5-12 (f)(1) contains an exception that allows for single sex accommodations: "provided, however, that nothing contained herein shall be construed to bar any place of public accommodation which is in its nature reasonably restricted exclusively to individuals of one sex, and which shall include but not be limited to any summer camp, day camp, or resort camp, bathhouse, dressing room, swimming pool, gymnasium, comfort station, dispensary, clinic or hospital, or school or educational institution which is restricted exclusively to individuals of one sex, provided individuals shall be admitted based on their gender identity or expression, from refusing, withholding from or denying to any individual of the opposite sex any of the accommodations, advantages, facilities or privileges thereof on the basis of sex; provided further, that the foregoing limitation shall not apply to any restaurant as defined in R.S.33:1-1 or place where alcoholic beverages are served.
I think this means that a dressing room may be restricted to individuals of a single sex, and may refuse entry to a person of the "opposite sex," but it must nevertheless allow admission to persons based on their "gender identity or expression." That's a mite confusing, but after you parse it, you can see that it simply preserves the right to have a single sex facility, and transgender people must be admitted to the facility according to their gender identity or expression.
Title 10:5-12 (g)(3) contains an exception for single-sex housing: "that nothing contained in this subsection shall be construed to bar any person from refusing to sell, rent, lease, assign or sublease or from advertising or recording a qualification as to sex for any room, apartment, flat in a dwelling or residential facility which is planned exclusively for and occupied by individuals of one sex to any individual of the exclusively opposite sex on the basis of sex, provided individuals shall be qualified based on their gender identity or expression.
As before, it preserves the right to have a single-sex facility, but nevertheless allows admission to transgender people based on their gender identity.
Title 10:5-12(p) specifically addresses workplace dress codes. "Nothing in the provisions of this section shall affect the ability of an employer to require employees to adhere to reasonable workplace appearance, grooming and dress standards not precluded by other provisions of State or federal law, except that an employer shall allow an employee to appear, groom and dress consistent with the employee’s gender identity or expression." The key word here, of course, is "reasonable," which in legalspeak means "socially acceptable." Since differential dress codes for men and women are socially acceptable, this section permits such a dress code. However, as courts have noted, dress codes may not impose an unequal burden on men and women, so there are some limitations.
Looking at the wider picture, advocacy groups have noted that passage of the NJ transgender equality law makes New Jersey the third most populous state to outlaw discrimination based on gender identity, and that laws now protect one-third of the US population based on gender identity or expression.
I previously posted a blog on the NJ bill that gives more information about the wider picture.
New Jersey’s Senate passed bill S362 on Monday, December 11, by a vote of 31-5. The Assembly version, A930, was substituted by the Senate version, S362, and as such, passed New Jersey’s lower house today by a vote of 69-5. It now goes to Governor Jon S. Corzine, who is expected to sign the bill into law. The text of S362 can be found at http://www.njleg.state.nj.us/2006/Bills/S0500/362_R1.HTM The bill will take effect on June 12, 2007, 180 days after today's passage.
The bill inserts "gender identity and expression" into a number of existing laws:
- Title 10:2, which requires public works contracts to contain a clause in which the contractor agrees not to discriminate in employment, violation of which may result in contract termination, and Title 10:5-32, which prohibits awarding a public contract to any firm that has not agreed and guaranteed not to discriminate.
- Title 10:5-5-4, which prohibits discrimination by public accommodations, such as restaurants and theaters and in housing.
- Title 10:5-9.1, which prohibits discrimination in public housing
- Title 10:5-12, which prohibits discrimination by employers, labor unions, public accommodations, such as restaurants and theaters, in housing or in credit and lending transactions.
Thus, it's not just non-discrimination in employment, but in public contracts, public accommodations, housing, and credit and lending transactions. These provisions are typical of a comprehensive non-discrimination bill. Not all of the states that have passed legislation prohibiting discrimination based on gender identity have included such comprehensive language. An example of this is Hawaii, which prohibits discrimination based on gender in housing, but not in employment.
Now for the "defining moment" -- the bill's definition of "gender identity and expression." The bill 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. 'Gender identity or expression' includes transgender status." Title 10:5-5(rr) The part about "whether or not stereotypically associated with a person's sex at birth" is typical. But it's unusual to have a definition include the words it is defining. The key question whenever this comes up is whether "gender identity or expression" includes someone who lives part-time in different gender roles. The other atypical item is that "gender identity or expression includes transgender status." The term "transgender" is inherently ambiguous. http://jweissdiary.blogspot.com/2006/03/issue-what-does-transgender-mean.htmlFor that reason, it is rarely included in legislation. It is included in the recent DC regs, and I had a little discussion there about the term. http://jweissdiary.blogspot.com/2006/11/dc-regulations-prohibiting-gender.html Here, transgender status is undefined in the bill, leaving it open to interpretation, so it may be difficult for courts to decide what constitutes transgender status.
This prompts a question that I often get in my consulting practice: what if someone just pretends to be have a female gender identity, but they do so falsely in order to obtain sexual gratification from the presence of females? My answer is that I have never heard of a situation where a person used a false claim of gender identity for that or any other purpose. I've certainly heard of a few cases where a man dressed as a woman to commit a crime and try to escape detection (though of course, having heard of the cases, the attempts were obviously not successful). I've also heard about men committing crimes in women's bathrooms. But those men didn't bother to dress up in women's clothing because their defense was to escape detection, not to make false claims about gender identity. More significantly, those cases were not spurred by the passage of a gender identity non-discrimination law. Now what if, you think, what if some crafty male, spurred by this new law, were to come up with a lascivious plan to lurk in the women's restroom and then, when confronted by the police about his harassing behavior, claim that he was entitled to commit harassment because of his gender identity? The answer is that harassing behavior is not permitted regardless of one's gender. If I am standing in the women's restroom and the woman next to me puts her hand on my thigh, that's harassment, and it doesn't matter if she claims gender identity issues or not.
The bill contains a number of provisions that preserve traditional understandings of sexual difference in public accommodations and employment.
Title 10:5-12 (f)(1) contains an exception that allows for single sex accommodations: "provided, however, that nothing contained herein shall be construed to bar any place of public accommodation which is in its nature reasonably restricted exclusively to individuals of one sex, and which shall include but not be limited to any summer camp, day camp, or resort camp, bathhouse, dressing room, swimming pool, gymnasium, comfort station, dispensary, clinic or hospital, or school or educational institution which is restricted exclusively to individuals of one sex, provided individuals shall be admitted based on their gender identity or expression, from refusing, withholding from or denying to any individual of the opposite sex any of the accommodations, advantages, facilities or privileges thereof on the basis of sex; provided further, that the foregoing limitation shall not apply to any restaurant as defined in R.S.33:1-1 or place where alcoholic beverages are served.
I think this means that a dressing room may be restricted to individuals of a single sex, and may refuse entry to a person of the "opposite sex," but it must nevertheless allow admission to persons based on their "gender identity or expression." That's a mite confusing, but after you parse it, you can see that it simply preserves the right to have a single sex facility, and transgender people must be admitted to the facility according to their gender identity or expression.
Title 10:5-12 (g)(3) contains an exception for single-sex housing: "that nothing contained in this subsection shall be construed to bar any person from refusing to sell, rent, lease, assign or sublease or from advertising or recording a qualification as to sex for any room, apartment, flat in a dwelling or residential facility which is planned exclusively for and occupied by individuals of one sex to any individual of the exclusively opposite sex on the basis of sex, provided individuals shall be qualified based on their gender identity or expression.
As before, it preserves the right to have a single-sex facility, but nevertheless allows admission to transgender people based on their gender identity.
Title 10:5-12(p) specifically addresses workplace dress codes. "Nothing in the provisions of this section shall affect the ability of an employer to require employees to adhere to reasonable workplace appearance, grooming and dress standards not precluded by other provisions of State or federal law, except that an employer shall allow an employee to appear, groom and dress consistent with the employee’s gender identity or expression." The key word here, of course, is "reasonable," which in legalspeak means "socially acceptable." Since differential dress codes for men and women are socially acceptable, this section permits such a dress code. However, as courts have noted, dress codes may not impose an unequal burden on men and women, so there are some limitations.
Looking at the wider picture, advocacy groups have noted that passage of the NJ transgender equality law makes New Jersey the third most populous state to outlaw discrimination based on gender identity, and that laws now protect one-third of the US population based on gender identity or expression.
I previously posted a blog on the NJ bill that gives more information about the wider picture.
Thursday, November 16, 2006
NJ gender identity bill
According to Garden State Equality, the NJ Senate Judiciary Committee voted 6 to 0 on Monday, November 13, with one abstention, to approve a bill to prohibit discrimination based on gender identity. The abstention was Sen. Joe Kyrillos (R-Monmouth). The Committee includes Sen. Tom Kean Junior (R-Union), who voted in favor. The bill now goes to the Assembly Judiciary Committee and then to a vote of the full Assembly and full Senate. The bill would add a citizen's 'gender identity or expression' as a basis for protection under the New Jersey Law Against Discrimination.
According to the latest statewide poll on the issue, 70 percent of New Jersey supports the bill, with only 19 percent opposed.
Interestingly, the HRC employer database does not indicate that NJ has a court ruling protecting gender identity, although it does if you know where to look: Enriquez v. West Jersey Health Systems. It also doesn't show that NJ has an employer policy protecting state employees, though this is more understandable as the policy is impossible to find. Thus, the importance of the bill is that now both employers and transgender employees will be able to find the law easily and read it with clarity.
I came across the state policy by accident. As a NJ state employee, I get a memo every year from Personnel requiring me to sign a statement that I had received and read the state anti-discrimination policy for public employees. Who reads these things? I do. Last year, I read it and saw to my astonishment that that it included gender identity. I did a little digging, and found that a new policy was issued on June 3, 2005 by the New Jersey Department of Personnel Division of Equal Employment Opportunity and Affirmative Action. It was issued on an interim basis, pending the adoption of rule amendments to the NJ Administrative Code (4A:7-1.1, 3.1 and 3.2), and it's already included on the NJ public employee complaint form. This Interim policy, however, can be undone with the stroke of a bureaucratic pen, and I'm guessing that the rule amendment to the Administrative Code is on hold pending the action on the legislative bill referenced above. Thus, the fight in the Senate and Assembly to pass the bill would seem to be key.
If you'd like to send a note to the Assembly and Senate leadership, you can contact them at http://www.njleg.state.nj.us/members/leadership.asp If you live or work in New Jersey, you can contact your legislators here: http://eqfed.org/campaign/a930yes
There are 37 Fortune 500 companies in New Jersey, and 11 of them already have policies against gender identity discrimination according to HRC: Prudential Financial Inc., Merck & Co. Inc., Honeywell International Inc., Johnson & Johnson, Lucent Technologies Inc., Liz Claiborne Inc., Schering-Plough Corp., Chubb Corp., Avaya Inc., Toys 'R' Us Inc. and Pathmark Stores Inc.
As discussed earlier this week, there are 7 states with statutes that prohibit discrimination against transgender employees (CA, IL, ME, MN, NM, RI and WA), and another 8 (CT, FL, HI, IN, MA, NJ, PA and NY) that have state-wide executive orders or court rulings protecting transgender employees.
According to the latest statewide poll on the issue, 70 percent of New Jersey supports the bill, with only 19 percent opposed.
Interestingly, the HRC employer database does not indicate that NJ has a court ruling protecting gender identity, although it does if you know where to look: Enriquez v. West Jersey Health Systems. It also doesn't show that NJ has an employer policy protecting state employees, though this is more understandable as the policy is impossible to find. Thus, the importance of the bill is that now both employers and transgender employees will be able to find the law easily and read it with clarity.
I came across the state policy by accident. As a NJ state employee, I get a memo every year from Personnel requiring me to sign a statement that I had received and read the state anti-discrimination policy for public employees. Who reads these things? I do. Last year, I read it and saw to my astonishment that that it included gender identity. I did a little digging, and found that a new policy was issued on June 3, 2005 by the New Jersey Department of Personnel Division of Equal Employment Opportunity and Affirmative Action. It was issued on an interim basis, pending the adoption of rule amendments to the NJ Administrative Code (4A:7-1.1, 3.1 and 3.2), and it's already included on the NJ public employee complaint form. This Interim policy, however, can be undone with the stroke of a bureaucratic pen, and I'm guessing that the rule amendment to the Administrative Code is on hold pending the action on the legislative bill referenced above. Thus, the fight in the Senate and Assembly to pass the bill would seem to be key.
If you'd like to send a note to the Assembly and Senate leadership, you can contact them at http://www.njleg.state.nj.us/members/leadership.asp If you live or work in New Jersey, you can contact your legislators here: http://eqfed.org/campaign/a930yes
There are 37 Fortune 500 companies in New Jersey, and 11 of them already have policies against gender identity discrimination according to HRC: Prudential Financial Inc., Merck & Co. Inc., Honeywell International Inc., Johnson & Johnson, Lucent Technologies Inc., Liz Claiborne Inc., Schering-Plough Corp., Chubb Corp., Avaya Inc., Toys 'R' Us Inc. and Pathmark Stores Inc.
As discussed earlier this week, there are 7 states with statutes that prohibit discrimination against transgender employees (CA, IL, ME, MN, NM, RI and WA), and another 8 (CT, FL, HI, IN, MA, NJ, PA and NY) that have state-wide executive orders or court rulings protecting transgender employees.
Tuesday, November 7, 2006
Locker room suit dismissed
One of the bugaboos that one must deal with in creating transgender policy is the idea that transgender employees will enter the bathroom, the locker room or the shower in order to leer at other employees.
The idea that such would be a common occurrence because of the employee's gender confuses gender identity with sexual orientation. Gender identity is a strong and persistent identification with being male or female, and is not the same as sexual orientation, which is the romantic desire to be with a partner of a specific sex. Thus, transgender women (i.e., those who transition from male-to-female) may be of any sexual orientation (straight, gay or bisexual).
Furthermore, everyone has a sexual orientation, but this is not the same as saying that everyone will stare at or proposition members of the desired sex. Just as straight men and women understand that appropriate behavior in the workplace precludes propositioning other members of the workforce willy-nilly, the same is true of gay and bisexual workers. Therefore, companies that allow transgender workers to use the bathroom or locker room of their new sex are not creating a situation ripe for sexual harassment or sexual harassment lawsuits. A recent case shows that the New Jersey courts agree with this assessment.
In the recently decided case of Opilla v. Lucent Technologies (2006 WL 2787047, Sept. 29, 2006), an employee sued for sexual harassment based on the presence of a transgender woman in the locker room of an on-premises health center provided by her employer, Lucent Technologies (though operated by a separate corporate entity). According to the plaintiff, one of her co-workers who was a transgendered female entered the women's locker room and stared at the plaintiff, who was then dressed only in her underwear. When asked how long the incident lasted, plaintiff testified that "[i]t could have been a minute. It felt like a long time." The transgendered co-worker left after another employee entered the locker room and told her to go change on the "other side."
The plaintiff immediately complained to the manager of the Health Center, who told her that he "didn't know what to do about the situation. He didn't know how to direct which locker room [the co-worker] should go into." But he promised her that he would check with Human Resources and "ask them what he should do." It appears, however, that no further inquiry on this matter, however, was taken by the plaintiff or the manager.
The plaintiff claimed that Lucent was liable for sexual harassment because it permitted transgender women to use the locker room, and in addition, that it was responsible for the alleged actions of the transgender woman in this incident. However, the motion judge referenced the legal requirement that the alleged harassment must "alter the conditions of employment" or "create a hostile working environment. She concluded that the one incident in the Health Center was not "severe or ... pervasive enough to make a reasonable female believe that the conditions of employment were altered and the working environment was hostile or abusive." Hence, she dismissed the discrimination complaint against Lucent.
The judge concluded that since the transgendered employee was not a supervisor, the plaintiff could not maintain a hostile work environment claim against her under the New Jersey Law Against Discrimination. The judge also concluded that plaintiff's common law tort claims against her employer Lucent, and against her co-worker, were barred by the Worker's Compensation Act. The appellate court agreed with the motion judge's conclusions, and the case was dismissed.
One caveat: While the opinion seems to specifically validate a corporate policy permitting locker room access, the appellate court specifically noted that it was not addressing that question. (However, I want to note that I think such a policy is unquestionably legal in most states.)
Another lesson to be learned from this case is: talk to all involved parties when you create policies inclusive of transgender employees. Talk to the vendor providing health club services. Talk to the manager of the health club. Talk to the corporate liaison with the vendor.
I did hear rumor of a similar case involving IBM some years ago, which was dismissed in favor of IBM, though I don't know if there was a written opinion.
In regard to company policy, I believe that the thing to keep in mind is that inappropriate behavior in a locker room (or bathroom) is inappropriate regardless of the gender of the actor. This is especially true after Oncale v. Sundowner, the US Supreme Court case in which it is noted that same-sex sexual harassment is actionable. If such behavior is demonstrated, the actor should be subject to the appropriate corrective action, regardless of gender.
The idea that such would be a common occurrence because of the employee's gender confuses gender identity with sexual orientation. Gender identity is a strong and persistent identification with being male or female, and is not the same as sexual orientation, which is the romantic desire to be with a partner of a specific sex. Thus, transgender women (i.e., those who transition from male-to-female) may be of any sexual orientation (straight, gay or bisexual).
Furthermore, everyone has a sexual orientation, but this is not the same as saying that everyone will stare at or proposition members of the desired sex. Just as straight men and women understand that appropriate behavior in the workplace precludes propositioning other members of the workforce willy-nilly, the same is true of gay and bisexual workers. Therefore, companies that allow transgender workers to use the bathroom or locker room of their new sex are not creating a situation ripe for sexual harassment or sexual harassment lawsuits. A recent case shows that the New Jersey courts agree with this assessment.
In the recently decided case of Opilla v. Lucent Technologies (2006 WL 2787047, Sept. 29, 2006), an employee sued for sexual harassment based on the presence of a transgender woman in the locker room of an on-premises health center provided by her employer, Lucent Technologies (though operated by a separate corporate entity). According to the plaintiff, one of her co-workers who was a transgendered female entered the women's locker room and stared at the plaintiff, who was then dressed only in her underwear. When asked how long the incident lasted, plaintiff testified that "[i]t could have been a minute. It felt like a long time." The transgendered co-worker left after another employee entered the locker room and told her to go change on the "other side."
The plaintiff immediately complained to the manager of the Health Center, who told her that he "didn't know what to do about the situation. He didn't know how to direct which locker room [the co-worker] should go into." But he promised her that he would check with Human Resources and "ask them what he should do." It appears, however, that no further inquiry on this matter, however, was taken by the plaintiff or the manager.
The plaintiff claimed that Lucent was liable for sexual harassment because it permitted transgender women to use the locker room, and in addition, that it was responsible for the alleged actions of the transgender woman in this incident. However, the motion judge referenced the legal requirement that the alleged harassment must "alter the conditions of employment" or "create a hostile working environment. She concluded that the one incident in the Health Center was not "severe or ... pervasive enough to make a reasonable female believe that the conditions of employment were altered and the working environment was hostile or abusive." Hence, she dismissed the discrimination complaint against Lucent.
The judge concluded that since the transgendered employee was not a supervisor, the plaintiff could not maintain a hostile work environment claim against her under the New Jersey Law Against Discrimination. The judge also concluded that plaintiff's common law tort claims against her employer Lucent, and against her co-worker, were barred by the Worker's Compensation Act. The appellate court agreed with the motion judge's conclusions, and the case was dismissed.
One caveat: While the opinion seems to specifically validate a corporate policy permitting locker room access, the appellate court specifically noted that it was not addressing that question. (However, I want to note that I think such a policy is unquestionably legal in most states.)
Another lesson to be learned from this case is: talk to all involved parties when you create policies inclusive of transgender employees. Talk to the vendor providing health club services. Talk to the manager of the health club. Talk to the corporate liaison with the vendor.
I did hear rumor of a similar case involving IBM some years ago, which was dismissed in favor of IBM, though I don't know if there was a written opinion.
In regard to company policy, I believe that the thing to keep in mind is that inappropriate behavior in a locker room (or bathroom) is inappropriate regardless of the gender of the actor. This is especially true after Oncale v. Sundowner, the US Supreme Court case in which it is noted that same-sex sexual harassment is actionable. If such behavior is demonstrated, the actor should be subject to the appropriate corrective action, regardless of gender.
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