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New Cases & Laws Protect Men Who Are "Not Man Enough" 09-01-01

Two new cases have significantly expanded employee rights. One was in New Jersey, and the other affects California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska and Hawai'i.

The Ninth Circuit Court of Appeals case involved a man who worked as a waiter in a Mexican restaurant. Apparently he is "straight," but his supervisor and co-workers barraged him with insults every day, calling him "her," "girl," "whore," or saying he "walked like a woman."

In ruling that the waiter could sue for sexual harassment, the Court relied on a 1989 U. S. Supreme Court case against Price Waterhouse. In that case, a woman was denied partnership in the accounting firm because she acted "rather masculine" and because she needed to "style her hair and wear make-up." The Supreme Court said that failure to conform to sex stereotypes is sex discrimination.

Interestingly, the Price Waterhouse case also was the basis for the New Jersey appeals court to expand protection to transsexuals.

There, the court ruled that New Jersey's Law Against Discrimination protects men who are diagnosed with gender dysphoria, and who undergo the standard medical course of treatment to change their identity to female, including dressing as women and having sex reassignment surgery. The court said that transsexuals are protected both on the basis of disability and on the basis of sex.

In so ruling, New Jersey agreed with an earlier court decision in the State of Washington that transsexuals are protected by state disability discrimination laws. Similarly, courts in New York and Minnesota have held that transsexuals are protected by state sex discrimination laws.

Gender dysphoria affects 1 out of 150,000 people and has been documented in all cultures from the beginning of history. Homer wrote about it in The Odyssey in the 8th century B. C. Indigenous peoples around the world, including Native Americans, honor and respect the people who are "two spirits." In western culture, it is a recognized condition included in the Dictionary of Standard Medicine (DSM).

Rhode Island just passed a bill last month that extends civil rights protections to transsexuals and cross-dressers. Connecticut and Minnesota already have such statutes, and another has passed the California Assembly and the Senate Judiciary Committee, and is on its way to the full Senate. In addition, California's new definition of "disability" includes transgenderism.

These new developments are welcomed by enlightened employers who value their employees. In the Price Waterhouse case, the "masculine" woman was rated objectively as number 1 in her class of 88 people, but she was the only one not offered partnership. Not only is that unfair, it also doesn't make business sense.

What You Should Do: Prohibit harassment against anyone on the basis of sex stereotypes. If someone comes to work one day as a "changed man," welcome her with open arms.

Nichols v. Azteca Restaurant Enterprises, ___ F. 3d ___ (9th Cir 07/16/2001)

Enriquez v. West Jersey Health Systems, ___ NJ App ___, (July, 2001)

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.
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