While you may believe this scenario is extreme, it is the fact pattern the New Jersey Appellate Division addressed in Carla V. Enriquez, M.D., v. West Jersey Health Systems, et al., where the Court concluded that the New Jersey Law Against Discrimination ("LAD") protects transsexualism based upon the law’s prohibitions against sex and handicap discrimination. The Court’s decision serves as a reminder of a continuous theme throughout decisions under the LAD: management must avoid assumptions or knee jerk reactions and proceed cautiously even in instances believed to be extreme.1 The case provides both a lesson and an opportunity to review a few key distinctions under federal and state law.
According to the Appellate Court, the rationale underlying federal court decisions and the majority of decisions by other State courts, which conclude that transsexualism is not protected under the rubric of sex discrimination, is too constricted. Notably, the LAD includes many individuals within the scope of its protection who are not protected under comparable federal laws. Further, the resounding battle cry of the LAD is evisceration of invidious discrimination. The Court relied upon both points as key components in its decision. The Appellate Court found it incomprehensible that the New Jersey legislature would ban discrimination against heterosexuals, homosexuals, bisexuals, and those perceived, presumed or identified by others as not conforming with stereotypical notions of how men and women behave, but not protect Carla against gender-based sex discrimination due to gender stereotyping and transforming himself from male to female.
Reaching its decision, the Appellate Division relied upon the trial court’s decision in Zalewski v. Overlook Hospital which, in turn, strengthens the conclusion reached in the Zalewski case: the LAD prohibits harassment by male co-workers directed at another male who they believed was a virgin. The Appellate Division went on to quote the Zalewski court’s admonition of "severe sexual harassment of a person because he is perceived or presumed to be less than someone’s definition of masculine." Agreeing with the Zalewski court, the Appellate Division concluded that under the LAD "’sex’ embraces an ‘individual’s gender,’ and is broader than anatomical sex," which in turn includes matters where the individual’s sexual orientation is not an issue. In other words, gender discrimination is a form of sex discrimination under the LAD which prohibits discrimination based upon gender identity or gender stereotypes such as masculinity.
The Appellate Court, relying upon the historically broad definition of handicap under the LAD and the criteria contained in the DSM-IV2, also concluded that gender dysphoria (e.g., transsexualism) is entitled to statutory protection as a disability. While the Court recognized that classification as a disorder within the DSM-IV does not automatically translate into a covered disability under the LAD, it nonetheless strongly relied upon the DSM-IV in reaching its decision. Further, the Court recognized that the LAD’s definition of handicap is significantly broader than its federal counterpart, the Americans with Disabilities Act ("ADA"). Unlike the ADA, the LAD does not exclude transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, or gender identity disorders not resulting from physical impairments or other sexual behavior disorders. Nor does the LAD require that a disability substantially limit a major life activity. The Court’s analysis is a reminder that disabilities covered under the ADA are only a floor for determining whether a disability is covered under the LAD. This led the Court to adopt a means to identify those disorders which also constitute a disability under the LAD.
A disorder constitutes a recognized disability under the LAD when such is: (1) demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques; (2) an ailment generally understood by the medical profession as a disease; and (3) a condition for which the employee sought legitimate treatment. The Court concluded that the first element was met based upon statistical data and the DSM-IV. Statistical information from a medical journal established that 1 in 50,000 individuals suffer from the mental disorder. Further, the DSM-IV recognizes gender dysphoria as a disorder and established criteria for diagnosing the disorder which, in turn, confirms that it can be diagnosed by accepted clinical techniques. The DSM-IV also identified it as a condition which causes significant distress or impairment. Notably, the Court recognized that gender dysphoria does not cause a violation of law, preserving the exception that disorders such as exhibitionism are not protected under the LAD. The second element was met by mere reference to a medical journal which stated that "treatment for the disorder can now ‘be regarded as accepted medical practice.’" The final element was established by the employee’s medical history.
The problem with the Court’s reliance upon the DSM-IV is inherent within the decision: each disorder listed within the DSM-IV is associated with present distress (e.g., a painful symptom) or disability (i.e., impairment in one or more important areas of functioning) or with significantly increased risk of suffering death, pain, disability or an important loss of freedom. Arguably, this allows a potentially endless array of disorders to fall under the definition of disability under the LAD provided there exists statistical data that at least 1 in 50,000 people suffer from the condition; there is some proof the medical profession "understands" it to be a "disease;" the employee seeks treatment for it and the disorder does not cause a violation of law or a substantial risk of harm to the employee or others. For example, this could include the following disorders listed in the DSM-IV: eating disorders such as binge eating, trichotillomania (the pulling out of one’s own hair), or obsessive compulsive or panic disorders which do not prevent performance of the essential job functions. Fortunately, the LAD does not protect employees who steal from their employer (kleptomania), attempt to burn down their place of employment (pyromania) or use illegal drugs.
While the Court concluded that gender dysphoria was a handicap under the LAD, it could not conclude that the employee was in fact handicapped. In fact, the Court remanded the case because there was no proof the employee had been diagnosed with gender dysphoria. Absent actual proof that the employee suffered a recognized disability, e.g. a professional diagnosis, the employee could not establish a claim under the LAD based upon disability discrimination. Although management should not assume whether a disorder or condition is (not) a disability under the LAD, this case also demonstrates that we should not assume that the disability claimed is actually suffered by the employee.
FOOTNOTES
1. The Enriquez case is not unique: recently a 36 year old transsexual corrections officer filed a lawsuit claiming a hostile work environment in Memmer v. New Jersey State Department of Corrections, et al.
2. Diagnostic and Statistical Manual of Mental Disorders, fourth edition, 1994 ("DSM-IV") is a treatise and recognized authority published by the American Psychiatric Association which, among other things, lists disorders and the criteria for diagnosis.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
