New Jersey Joins A Growing Number Of Jurisdictions In Expressly Prohibiting Discrimination On The Basis Of Gender Identity Or Expression - Part ITricia B. O'Reilly and M. Trevor Lyons
Connell Foley LLP
Title VII of the Civil Rights Act of 1964 ("Title VII") is a federal statute prohibiting, among other things, employment discrimination based on race, color, religion, sex, or national origin. Title VII, however, does not contain express language barring discrimination based upon an individual's expression of gender. Moreover, the federal courts, most notably in Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984), cert. denied , 471 U.S. 1017, 105 S.Ct. 2023, 85 L.Ed.2d 304 (1985), have traditionally held that discrimination on the basis of gender dysophoria is not sex discrimination.4 Nonetheless, a few federal courts have begun to recognize such claims on the basis that perceived gender identity is stereotype discrimination prohibited by the Supreme Court's ruling in Price Waterhouse v. Hopkins , 490 U.S. 228 (1989) . In Price Waterhouse v. Hopkins , the U.S. Supreme Court held that harassment directed at a person because that person does not conform to traditional sex stereotypes is prohibited by Title VII.
