Issue 42

Zatuchni & Associates Newsletter

RECENT CASES

New York Must Pay Huge Damages For Violations Of The
Fair Labor Standards Act ("FLSA")

Under a recent consent judgment, the State of New York must pay $4,039,722 in back wages and interest to approximately 350 employees of the State Department of Environmental Conservation.

The suit, which was filed by the U.S. Department of Labor in 1990, alleged ongoing violations of the FLSA since 1988. Specifically, New York was charged with failing to properly pay overtime to conservation officers, investigators, and forest rangers.

For non-exempt employees, the FLSA generally requires overtime pay for all hours worked in excess of 40 in any week. The Act also sets the federal minimum wage, requires employers to keep adequate time and payroll records, and protects against child labor abuse. The U.S. Labor Department's Wage and Hour Division estimates that the FLSA covers more than 110 million workers nationwide.

Transsexuals Are Protected Under The New Jersey Law Against Discrimination ("LAD")

In a case of first impression, New Jersey's Appellate Division recently held in Enriquez v. West Jersey Health Systems,, 342 N.J. Super. 501 (App. Div. 2001), 2001 WL 741271 that employers cannot discriminate against an employee because he or she is a transsexual.

The plaintiff in the case, Carla Enriquez, M.D. was born biologically a man, and until February 1998, was legally known as "Carlos." In 1995, while still a man, the plaintiff was hired as the medical director of the defendant outpatient treatment facility ("West Jersey"). Within a year of being hired, plaintiff commenced an external transformation from male to female by removing all facial hair, sculpting and waxing her eyebrows, piercing her ears, and growing breasts. Plaintiff also began manicuring and polishing her nails, growing long hair, and wearing a ponytail.

During this period, plaintiff was confronted several times by her supervisors about her transformation, and was asked to go back to her prior appearance. In June 1997, plaintiff was officially diagnosed with the disorder known as "gender dysphoria," which is commonly called transsexualism. In October 1997, plaintiff was terminated from her position. Shortly thereafter, plaintiff legally changed her name to Carla, and underwent sex reassignment surgery to become a female. Plaintiff then sued her former employer for both sex discrimination and disability discrimination under the LAD.

Sex discrimination - The LAD prohibits discrimination on the basis of "sex." The court in Enriquez chose to interpret "sex discrimination" broadly, and ruled that the concept also encompassed discrimination on the basis of "gender," which the court defined as "whether a person has qualities that society considers masculine or feminine." The court concluded that "sex discrimination under the LAD includes gender discrimination so as to protect plaintiff from gender stereotyping and discrimination for transforming herself from a man to a woman."

Handicap discrimination - Termination of a "handicapped" employee, whose condition does not prevent the employee from doing her job, is actionable under the LAD. The novel issue raised in Enriquez was whether gender dysphoria constitutes a "handicap" for purposes of the Act. In analyzing the issue, the court noted that gender dysphoria is listed as a gender identity disorder in the Diagnostic and Statistical Manual of Mental Disorders. The court concluded that "gender dysphoria is a recognized mental or psychological disability that can be demonstrated psychologically by accepted clinical diagnostic techniques and qualifies as a handicap under the LAD." New Jersey courts are known for their liberal interpretation of the LAD, and the ruling in Enriquez can only add to that reputation. Once again, the parameters of the anti-discrimination laws have been broadened. Employers should consider the decision a signal to be very cautious when discharging an employee for any reason relating to that person's gender or sexuality. Given the court's expansive conception of "handicap," employers must also be careful in taking adverse action against any employee with a known mental condition or syndrome.

Disclaimer

The information contained in this Newsletter does not constitute legal advice. Zatuchni & Associates, LLC tries to provide quality information, but we make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein. As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent counsel.