On June 17, New Jersey legislators amended the state’s already extensive Law Against Discrimination (LAD) to prohibit employers from discriminating against individuals based on “gender identity or expression.” New Jersey became the 10th state to expressly prohibit employment discrimination on the basis of gender identity or expression. (The other states are California, Illinois, Iowa, Maine, Minnesota, New Mexico, Rhode Island, Vermont and Washington.) On Aug. 3, Colorado became the 11th state to enact such protections and, on Jan. 1, 2008, Oregon’s new legislation will go in to effect, making it the 12th state. In addition, several other states have court opinions or executive orders protecting gender identity or expression, and almost 100 municipalities have such protections in place as well. I applaud all the states that afford these protections to employees, and counsel employers to adapt to this ever-changing landscape of anti-discrimination standards.
Without some clarification, the scope of this new amendment to the LAD may leave many perplexed. According to the New Jersey Legislature, the phrase “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 at birth.” Unfortunately, it seems that many employers and employees alike find themselves scratching their heads or burdened by a blank stare in response to this “formal definition.” This new protection, however, is not to be confused with the prohibition against “sexual orientation” discrimination, which has long been a part of New Jersey’s LAD.
