Tuesday, April 12, 2011
The New York Times has a story on a recent case that sounds like it was ripped out of a law school exam. The claim was made in New Jersey, which prohibits discrimination based on gender identity. The plaintiff was born female, but identifies as male and had sex-alteration surgery. The job at issue is one that classically fits under the BFOQ defense: a drug testing urine monitor (it's what it sounds like and was limited to males, like those being tested). Soon after being hired, the plaintiff was confronted about being transgendered and then fired. The employer's defense is essentially that the plaintiff was not a man--raising the question of how we should classify sex.
The case should be an test for the New Jersey statute, which hasn't faced a transgender discrimination case yet. It also prompts questions about whether the plaintiff would have a sex-based claim under Title VII or other laws that don't include gender identity as a protected class. There's at least a potential stereotyping claim in the air.
Hat Tip: Jessica Van Dyke