Gregory DePiano has worked as a corrections officer for Atlantic County, New Jersey since August 1987. He was promoted to sergeant in 1997 and served in that position until he was demoted to corrections officer in January 2003. Since January 2000, DePiano had been issued a total of 33 suspension days, four reprimands, and six counselings.
DePiano challenged his demotion under New Jersey’s Law Against Discrimination (LAD), which prohibits disability discrimination in a fashion even broader than the Americans With Disabilities Act. DePiano contended that his misconduct was the product of his compulsive gambling, and that compulsive gambling was a disability protected under the Law Against Discrimination.
A federal court was unimpressed with DePiano’s claim. As the Court put it, “ultimately, DePiano has not demonstrated that his compulsive gambling is a disability under the LAD. He has not pointed to, and this Court has not found, a single case recognizing compulsive gambling as a disability under the LAD. Assuming it is a disability, DePiano has not demonstrated that he actually suffers from compulsive gambling. DePiano explains in his brief that he has produced medical records of his disability for Defendants, but he has not included those medical records as part of the record before the Court. Therefore, aside from DePiano’s own claims that he is a compulsive gambler, there is no proof before the Court on this issue.”
The Court did allow DePiano to proceed to trial on whether he had been sexually harassed because of his cross-dressing. The Court found that “sexual affectation and/or orientation and/or gender, real or as perceived by the employer,” were all protected classes under the law. The Court also concluded that “the record in this case permits the conclusion that DePiano was subjected to severe and pervasive harassment because of his cross-dressing. DePiano was taunted throughout the facility by numerous officers.
As the Court ruled: “Furthermore, the inmates also knew of DePiano’s cross-dressing and subjected him to their own taunts. Though the County does not acknowledge that the taunts of prisoners may create a hostile working environment, there appears no more effective a way to engender horrible working conditions for a prison guard than to reveal one of his embarrassing secrets to the general population.”
DePiano v. Atlantic County, 2005 WL 2143972 (D.N.J. 2005).
This article appears in the November 2005 issue