If you’re employed in New Jersey you have legal protection under the New Jersey Law Against Discrimination (NJLAD). The main federal law which covers most employment discrimination claims, Title VII of the Civil Rights Act of 1964, doesn’t explicitly cover sexual orientation. Plaintiff’s lawyers have had some success in cases where sexual orientation is an issue, but it’s an uphill climb.

State law

The state law (NJAC 10:5-12) states in part:

11. It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination:
12. For an employer, because of the…marital status, civil union status, domestic partnership status, affectional or sexual orientation…to refuse to hire or employ or to bar or to discharge…from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment; provided, however, it shall not be an unlawful employment practice…for a religious association or organization to utilize religious affiliation as a uniform qualification in the employment of clergy, religious teachers or other employees engaged in the religious activities of the association or organization, or in following the tenets of its religion in establishing and utilizing criteria for employment of an employee…

The law also has similar bans of discrimination by labor unions and employment agencies, prohibiting them from playing a role in illegal employment discrimination. The NJLAD was amended in 1991 to cover discrimination because of “affectional or sexual orientation…”

Federal law

The federal agency responsible for enforcing Title VII, the Equal Employment Opportunity Commission (EEOC) takes a broad view of language in the statute and how it’s been interpreted by the U.S. Supreme Court. The EEOC is investigating and litigating lawsuits involving allegations of sexual orientation discrimination under Title VII.

• The U.S. Supreme Court in Price Waterhouse v. Hopkins in 1989 allowed a discrimination claim based not on Plaintiff’s sexual orientation but on her gender (which is listed in Title VII as a protected basis). The Plaintiff claimed her employer discriminated against her because she did not conform to gender stereotypes. The Plaintiff claimed she was not made a partner because management didn’t feel she was feminine enough.
• Since that case Title VII lawsuits that otherwise would claim sexual orientation state discrimination because the plaintiff failed to conform to traditional, stereotypical behavioral norms associated with the person’s sex.

In 2015, the EEOC stated in a decision in a case brought against the federal Department of Transportation that “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” As a result, the EEOC accepts and acts on employment claims of alleged sexual orientation discrimination just like any other claim under Title VII.

The EEOC sees the issue as:

• Sexual orientation discrimination is based on sex-based preferences, assumptions, expectations, stereotypes, or norms.
• “Sexual orientation” can’t be defined or understood without reference to sex.
• Since sexual orientation is linked to sex allegations of sexual orientation discrimination involve sex-based considerations.

As an example, a lesbian employee lost her job after her boss discovered she has a female partner but didn’t fire a male employee after his supervisor learned he was married to a woman. The lesbian employee can argue she was fired because of her sex, female, because a male employee with a female partner wasn’t fired like she was.

Discrimination claims can also be based on who the employee is “associated” with. A white employee could claim she was discriminated against because she was a Caucasian who was fired after her racist boss learned she was married to an African American. A non-disabled employee can claim illegal discrimination after his employer learns he has a disabled wife and fires him fearing her medical bills may increase their insurance costs. In a sexual orientation claim a plaintiff could claim that because he or she is “associated” with a person of the same sex, he or she was subjected to illegal sex discrimination.

As helpful as the EEOC is, it’s only a government agency, not the Supreme Court. It can ask judges to see things its way, but ultimately judges make binding interpretations of the law, not government agencies. The agency is run by a five member panel. Later this year it’s expected to turn from majority Democratic to majority Republican, according to the Phoenix New Times. Given the Trump administration’s “business friendly” philosophy, it would not be surprising if the EEOC becomes much more conservative when it comes to interpreting and enforcing anti-discrimination laws, including claims based on sexual orientation, to limit possible exposure and costs to employers.

Lower court rules in EEOC’s favor

There have been some lower courts that have ruled Title VII covers sexual orientation discrimination but they have been overturned on appeal. The most recent lower court case is EEOC v. Scott Medical Health Center which was decided in federal court in Pittsburgh in November. There is no appellate decision for the case.

Essentially, the lawsuit claims the employee claims his boss made his job a living Hell and the company forced him to quit because he’s gay.

• Dale Baxley worked in defendant’s telemarketing department. Robert McClendon was his boss. Baxley claims McClendon made remarks about homosexuals and how gay men have sex three to four times a week during the month and a half Baxley worked there in 2013. He says he was forced to quit because Scott Medical didn’t take any corrective action after he complained of harassment.
• Scott Medical sought to have the case dismissed because it claims Title VII doesn’t cover sexual orientation claims. Judge Cathy Bissoon disagreed and wrote in her decision,
  • The phrase discrimination “because of sex” has traditionally been interpreted broadly. It’s been interpreted to cover harassment when employees of the same sex are involved and when the alleged victim is transgendered.
  • The Price Waterhouse decision states that a valid sex discrimination case can be based on negative employment decisions due to management’s stereotyping based on traditional norms of how someone of their sex should act.
  • “There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality…Indeed, the Court finds discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple; there is no line separating the two.”

It’s unknown what will happen with this decision if it’s appealed. Politics may be a factor. The change from Democratic to Republican control is expected around July. If the case is dismissed and appealed, under new management (expected in July) the EEOC may withdraw its appeal and let the dismissal stand. This may be a very concrete example of the fact that votes matter.

If you believe you’ve been discriminated against at work because of your sexual orientation, contact our office so we can discuss your situation, how the law may be applied and your best options to protect your rights.