Lesbian, gay, bisexual, transgender, and queer employees have faced workplace discrimination for decades based on their sexuality. This type of discrimination is harmful and illegal. Discrimination based on sexual orientation has been illegal in New Jersey since 1991, and the state amended the New Jersey Law Against Discrimination in 2006 to also prohibit discrimination based on gender identity. On June 15, 2020, the U.S. Supreme Court also ruled that federal anti-discrimination laws protect LGBTQ people in the workplace as a prohibited form of sex discrimination. LGBTQ workers are now protected against workplace discrimination based on their sexual orientation or gender identity nationwide, but much more work needs to be done to end this type of unlawfully discriminatory conduct in the workplace. The attorneys at Swartz Swidler represent workers who have faced illegal discrimination based on sexual orientation and gender identity.
Importance of protecting LGBTQ workers
LGBTQ people experience higher rates of discrimination both in hiring and on the job. In the past, many LGBTQ workers have reported being fired, demoted, denied promotions, and harassed because of their sexual orientation or gender identity. This pattern has led to less job security and higher poverty rates for LGBTQ people, and they are much likelier to undergo long periods of unemployment. The issues are even more severe for LGBTQ workers who are also members of minority groups, including Black and Hispanic employees.
Effect of the Supreme Court’s decision
Before the Supreme Court’s ruling that discrimination based on sexual orientation or gender identity is an illegal form of sex-based discrimination, some states, and localities, including New Jersey, had existing laws that offered explicit protection to applicants and employees against discrimination based on sexual orientation and gender identity. These local and state laws will continue to be effective where they have been enacted. In places that did not have these types of explicit laws, the Supreme Court’s decision will apply, protecting people no matter where they live and work.
Many employers across the U.S. also had policies in place to protect LGBTQ workers. However, employers that do not have these types of inclusive policies should add them now.
Employment policies to protect LGBTQ workers
Employers that do not have inclusive policies in place to protect LGBTQ workers against discrimination should write them and include them in their companies’ policy and procedure manuals. Employers should train their employees about the prohibition against workplace discrimination based on sexual orientation and discrimination. They should also promptly investigate any reports that employees have been discriminated against because of their sexual orientation or gender identity and take action to end it when it occurs.
As a part of this process, employees should complete a comprehensive review of their applications and hiring practices to prevent discrimination from occurring during the recruitment and hiring process. People who discriminate against LGBTQ workers and applicants should be promptly disciplined.
Training for supervisors
Employers should review their training processes to ensure that they fully address the protections for LGBTQ employees in the workplace. Supervisors, managers, and employees should all receive further training, and employers should follow best practices for maintaining an inclusive and accepting work environment that celebrates diversity.
Supervisors and managers should be taught that illegal discrimination can still happen even when they do not intend to harm an employee based on his or her sex. For example, if an employer fires a woman because she is perceived as being too masculine while also terminating a man because he is perceived as being too feminine, both employees have been terminated partly based on sex even though they were treated equally. This underscores the fact that prohibited sexual discrimination based on gender identity or sexual orientation is not based on terms or labels. Instead, sex discrimination is broadly defined as including all forms of discrimination based on sex, including sexual orientation and gender identity.
Supervisors and managers need to learn that sexual orientation and gender identity discrimination are forms of illegal sex discrimination. Employers should also make sure that their standards prohibiting workplace harassment and discrimination against LGBTQ workers are clear. People in positions of authority within the workplace should know how to respond to these types of discrimination in the workplace and to treat complaints seriously when they are filed.
Get help from the attorneys at Swartz Swidler
The Supreme Court’s decision promises to change the way that LGBTQ workers are treated during the hiring process and at work. However, discrimination against employees based on sexual orientation and gender identity is an ongoing issue. People who believe that they have faced this type of discrimination because of their sexual orientation or gender identity should contact the discrimination attorneys at Swartz Swidler to learn about their legal options. For a free consultation, call us today at (856) 685-7420.
