Workplace sexual orientation discrimination has long been a problem in workplaces across New Jersey, Pennsylvania, and the rest of the U.S. However, employers are not allowed to discriminate against employees based on their sexual orientation. This prohibition extends to all aspects of employment from hiring to firing. People who work in New Jersey are protected against sexual orientation discrimination under both state and federal law.
While the situation for LGBTQIA workers has improved over the last decade, sexual orientation and gender identity discrimination remain to be problems for many people. Many LGBTQIA employees continue to face problems at work based on their sexual orientations or gender identities. It is important for you to understand your rights and to understand what sexual orientation discrimination is so that you can protect yourself. The attorneys at Swartz Swidler can help you understand this type of discrimination and provide you legal representation if you have been the victim of illegal sexual orientation discrimination.
What Is Sexual Orientation Discrimination?
Sexual orientation discrimination in the workplace is illegal. It occurs when an employee is treated differently than others based on their perceived or real sexual orientation. This type of discrimination also occurs when an employee is treated differently based on his or her relationship with another person who has a different sexual orientation. Sexual orientation discrimination might also involve discrimination or harassment based on an individual’s marital status, real or perceived HIV status, and other related characteristics.
Sexual Orientation Discrimination and the Law
The rights of LGBTQ people took the forefront across the U.S. in 2015 with the U.S. Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2071 (2015). This decision struck down the Defense of Marriage Act and recognized the rights of same-sex couples to marry.
The Obergefell decision also required employers to recognize same-sex married and heterosexual married couples as equal. This meant that same-sex married couples could obtain employer-provided health insurance benefits for their spouses through their employers. In states that did not previously recognize same-sex marriage, this change was a watershed moment for LGBTQ people, allowing them the right to marry and to be covered under their spouses’ employer-provided insurance and other benefits.
In 2020, the Supreme Court’s decision in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020) further changed the legal landscape for LGBTQ people within the workplace. In the Bostock decision, the Supreme Court found that sexual orientation and gender identity discrimination were both prohibited forms of sex discrimination under Title VII of the Civil Rights Act of 1964.
Before the Supreme Court’s decision in Bostock, the various Circuit Courts had conflicting views on whether sexual orientation discrimination was prohibited under Title VII’s prohibition against sex discrimination in the workplace. The decision resolved the conflict between the different Circuits, and sexual orientation and gender identity discrimination are now federally prohibited in workplaces in every state.
Sexual orientation discrimination is also expressly prohibited in New Jersey under the New Jersey Law Against Discrimination. While Title VII only applies to employers with 15 or more employees, the NJLAD applies to all employers operating in the state no matter their size. This means that if you are the victim of sexual orientation discrimination in New Jersey and work for an employer with fewer than 15 employees, you are still protected under state law and can file a claim against your employer with the New Jersey Division on Civil Rights.
Examples of Sexual Orientation Discrimination
Sexual orientation discrimination can take many forms in the workplace and occurs whenever an employer discriminates against an applicant or employee in the terms or conditions of employment based on his or her sexual orientation or relationship to someone else of a different sexual orientation. Discrimination against applicants and employees based on sexual orientation at work is illegal under federal and state law.
Illegal, Differential Treatment
The prohibitions under Title VII and the NJLAD against sexual orientation discrimination cover all aspects of the employment relationship from hiring to firing. This means that an employer cannot refuse to hire you, promote you, offer you benefits, give you bonuses, or provide opportunities for training or advancement simply based on your real or perceived sexual orientation. Your employer also cannot fire you, select you for a layoff, or discipline you based on your sexual orientation.
Differential treatment based on sexual orientation can take many forms within the workplace. If your employer has taken adverse action against you because of your sexual orientation, you have legal rights and can pursue damages. Discrimination can also be overt or more subtle. If you think that you have been the victim of unlawful discrimination, you should speak to an attorney at Swartz Swidler for a free case evaluation so that you can learn about the legal remedies that might be available to you.
Some examples of differential treatment that might amount to illegal discrimination based on your sexual orientation include the following:
- Not being allowed to keep a picture of your spouse on your desk when heterosexual employees are free to display pictures of their spouses
- Being kept out of meetings and training
- Being passed over for a promotion because of your sexual orientation
- Not getting a job for which you are qualified because of your sexual orientation
- Being paid less than your heterosexual peers with equal levels of education and experience for the same job
- Being chosen for a layoff when most employees selected are chosen based on their sexual orientation
Sexual orientation discrimination might be perpetrated by your supervisor, co-workers, the company’s CEO, or the company’s clients or customers. Whenever sexual orientation discrimination occurs, you should promptly report it to human resources. They should investigate what happened and take prompt action to end the discriminatory conduct.
Sexual Orientation Harassment
Workplace harassment based on your sexual orientation is also illegal. Harassment can include hostile work environment harassment or quid pro quo harassment and is unlawful when it is based on your sexual orientation. Quid pro quo harassment occurs when a supervisor offers benefits to you for performing sexual favors or threatens reprisals if you deny the advances.
Hostile work environment harassment involves situations in which the harassment is severe or pervasive enough to create a hostile work environment that interferes with your ability to perform your job. This might include sexual jokes, negative comments about your sexual orientation or mannerisms, unwanted touching, leering, obscene gestures, hostile comments, or displays of drawings that negatively portray people with a particular sexual orientation.
Consult With an Experienced Discrimination Lawyer
If you believe that you have been the victim of unlawful sexual orientation discrimination or harassment at your job, you should speak to the attorneys at Swartz Swidler. Call us at (856) 685-7420 to schedule a free, confidential consultation.
