In 2007, the New Jersey Law Against Discrimination (NJLAD) was amended to prohibit discrimination on the basis of “gender identity or expression.” That means “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.”
Transgender status is more common than many people think. Psychologists estimate that approximately one in 30,000 people who are born male will eventually seek sex reassignment surgery. About 1 in 100,000 “birth-assigned” females seek sex reassignment surgery.
Discrimination at work
That means employers may eventually encounter an applicant or employee who is preparing for or has undergone sex reassignment.
Transgender persons are frequently the subjects of hate crimes and discrimination in all aspects of life, including work. Discrimination can be especially difficult for transgender persons who undergo a transformation while on the job. Bias, lack of information and confusion can lead co-workers and managers to ostracize and discriminate against them.
Transgender employment cases
Historically, there are few decided cases in the United States concerning transgender persons in the workplace. However, there have been an increasing number of transgender employment cases in the courts.
Courts have been reluctant to apply Title VII of the federal Civil Rights Act of 1964 to transsexuals claiming employment discrimination. However, states like New Jersey have amended statutory anti-discrimination laws to include protections for transgender people.
At the same time, more and more transgender people are testing the legal boundaries of existing discrimination and civil rights laws and asserting that they should be protected to the same extent other minorities are.
Tips for employers
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.
Dealing with transgender issues presents some unique legal and HR issues. The topic and the presence of people who are sexually “different” can cause great discomfort for some employees.
But that doesn’t mean you can put up with bias or harassment. Remember, there was a time not too long ago when the presence of female, minority, disabled, gay and lesbian employees commonly caused strife in some work settings. Strong anti-discrimination laws and growing social tolerance have at least lessened those problems.
That’s a model for incorporating transgender employees in your workplace. You should simply treat transgender employees with the same fairness, respect and professionalism afforded to other employees.
Danielle Wilson, a law clerk at Adams, Stern, Gutierrez & Lattiboudere, contributed to this article.
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