A job discrimination suit recently brought under the New Jersey Law Against Discrimination (“NJLAD”) challenges an employer’s decision to terminate a transgender man from a “male-only” position. Urban Treatment Associates in Camden, New Jersey, hired El’Jai Devoureau as a part-time urine monitor, but terminated him after his supervisor discovered that his assigned sex at birth was female. Mr. Devoureau’s position required him to supervise men providing urine samples for drug tests. Mr. Devoureau is a transgender man; while his assigned sex at birth was female, his gender identity and expression is male.

Urban Treatment Associates argues that gender is a legitimate job qualification for a urine monitoring position and that Mr. Devoureau is not qualified to monitor men because he was assigned female at birth. Mr. Devoureau is not disputing his former employer’s claim that a female individual is not qualified to monitor men providing urine samples. Rather, Mr. Devoureau’s position is that he is a male individual and therefore qualified for the “male-only” job. He alleges that the drug treatment center discriminated against him based on his gender identity and expression.

New Jersey is one of thirteen states that prohibits workplace discrimination based on gender identity and expression. The NJLAD 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.” The contours of this provision, however, are largely undefined, and it is unclear whether or when classifying a transgender man as female for purposes of job assignment would violate the LAD. In this case, all of Mr. Devoureau’s identity documents classify him as male. However, gender reclassification procedures vary widely among agencies, with some prohibiting reclassification and others requiring proof of transition-related surgeries. As a result, a transgender person may not be able to obtain documentation that reflects his or her gender identity and every day gender presentation.

Regardless, employers should be aware that guidelines and regulations in certain jurisdictions indicate that an employer is required to treat a transgender person in accordance with his or her gender identity and expression, rather than assigned sex at birth. For example, the Gender Identity Guide published by the Philadelphia Human Relations Commission defines unlawful gender identity discrimination to include:

• Terminating, refusing to hire, refusing to promote or otherwise discriminating against an employee because customers or fellow employees express discomfort with that employee’s gender identity or expression;
• Persistently referring to an employee with pronouns that are not gender-identity appropriate, or otherwise refusing to treat an employee respectfully, and in accordance with his or her gender identity;
• Prohibiting an employee from using a gender-identity appropriate restroom or locker room; and
• Inquiring into the surgeries or medical procedures that an employee has undergone or requiring an employee to provide legal or medical documentation, as a precondition to allowing the employee to act in accordance with his or her gender identity at work.

While these guidelines provide some useful information about emerging workplace protections for transgender employees, employers seeking to proactively implement best practices and avoid liability for gender identity discrimination should complete a comprehensive review of their policies and procedures.