El’ Jai Devoureau, a transgender man in Southern New Jersey who alleged he was barred from working in a male- only job in a Camden New Jersey drug treatment facility, settled his lawsuit against Camden Treatment Associates, LLC. He claims the drug treatment center hired him as a urine monitor for men. His job responsibilities included monitoring male outpatients as they provided urine samples for drug testing.
Devoureau says that on his first full day of work, Camden Treatment fired him on the spot after being told that he had transitioned from female to male. Camden Treatment specifically denied that Mr. Devoureau was ever employed by Camden Treatment and also denied the allegations of improper discrimination in the settlement. Devoureau sued under N.J. Stat. Ann. § 10:5-12(a) under the contradictory theories of sex discrimination and gender identity discrimination.
Although the full terms of the settlement are confidential, Camden Treatment notes that it “fully acknowledges that Mr. Devoureau is male” and that it has aligned its internal compliance policy to include transgender individuals as a protected class. This is in accordance with New Jersey’s employment nondiscrimination law, which has included protections for gender identity and expression since 2007.
This settlement, although not at all binding on any other party, bodes poorly for Women, as it is an example of the disregard for the privacy rights of others in the pursuit of employment rights for transgender individuals. In other words, there are many Men who would not, in fact, want to be observed by a biological female while urinating. More importantly, there are probably more Women who do not wish to be observed by a biological male while urinating.
New Jersey, like many states, provides that it is not unlawful discrimination on the basis of sex for an employer to refuse “to accept for employment any person on the basis of sex in those certain circumstances where sex is a bona fide occupational qualification, reasonably necessary to the normal operation of the particular business or enterprise.” Query whether having a person of the same sex as a target population act as a monitor in this manner is a “bona fide occupational qualification.” Query also whether one’s “gender identity” would override the ability of an employer to discriminated based on sex where such discrimination is necessary due to a “bona fide occupational qualification.” In In re Juvenile Detention Officer Union County, 364 N.J. Super. 608, 837 A.2d 1101 (App.Div. 2003), the court found that the New Jersey Merit System Board properly granted a county’s request for eight bona fide occupational qualifications designations for male-only juvenile detention officer positions because the county had sufficiently demonstrated a BFOQ defense to state and federal proscriptions against sex discrimination. Specifically, the need to maintain the juveniles’ privacy rights outweighed the equal employment opportunity rights of union members, and, as the conflict between the competing interests could not be avoided by other means, the BFOQ designations were properly allowed under the limited exceptions against sex-based discrimination under N.J. Stat. Ann. § 10:5-12(a) and 42 U.S.C.S. § 2000e-2(e).