New Jersey Employment Lawyer Blog
Followers of national news in late April have likely become aware that the U.S. Supreme Court is currently considering two cases that could vastly reshape the face of federal employment discrimination law. One case asks the court to decide whether or not current federal law (Title VII of the Civil Rights Act) protects workers from discrimination based on sexual orientation, while the other poses a largely similar question in relation to gender identity.
Fortunately for LGBTQ+ workers in New Jersey, greater protection from workplace discrimination is already in place. So, if you’ve been the victim of employment discrimination because you’re gay, lesbian, trans, etc. in this state, then you should take action promptly to talk to a knowledgeable New Jersey employment attorney and learn more about your rights, including filing suit and going to court.
In the current cases, a Long Island skydiving instructor sued after he was allegedly was terminated from his job after his employer learned that he was gay. Similarly, a court child welfare services coordinator in Georgia went to court after he allegedly was fired once his sexual orientation became known to his employer. These cases have been combined by the Supreme Court.
A case proceeding separately involved a trans woman in greater Detroit who allegedly was fired from her funeral director job after she informed her employer that she was transitioning from male to female and would begin attending work in clothes consistent with the employer’s dress code for women.
A fully successful outcome for all of these employees (in the form of a Supreme Court ruling declaring that Title VII covers sexual orientation and gender identity) would have the potential to be a major benefit for LGBTQ+ workers. Any such worker who suffered discrimination on the job due their sexual orientation or gender identity would be entitled to bring a federal employment discrimination lawsuit against that employer for violating federal law.
For LGBTQ+ employees in New Jersey, the current state of federal law is not entirely clear. The Third Circuit Court of Appeals, whose rulings cover federal cases in New Jersey, Pennsylvania and Delaware has issued a mixture of rulings in this area, with some favoring employers and some coming down on the side of employees.
If you’re in New Jersey… there’s good news
If you are a LGBTQ+ employee in New Jersey, though, you already have legal protection under state law. Because of the forward-thinking action of the New Jersey legislature, the Law Against Discrimination has forbidden employment discrimination based on sexual orientation since 1991 and barred workplace discrimination based on gender identity since 2006.
To present a winning case of sexual orientation or gender identity to the courts under the New Jersey Law Against Discrimination, you can take one of two approaches. If you have direct evidence of discrimination, then you can certainly proceed with a direct case. If don’t – and most folks don’t – don’t worry. You can still succeed with circumstantial evidence. To do so, you need proof of several things. They are:
- That you were a member of a protected class (in other words, you are a lesbian, gay man, trans man, trans woman, etc.)
- That you were qualified for the position you held or for which you applied
- That you suffered an adverse employment action (firing, demotion, reduction of hours, reduction of pay/benefits, assignment to more laborious or more demeaning tasks, etc.)
- That the employer knew or perceived you to be a member of your protected class and took its adverse action because you were a member of that class
As for how this works, take the facts of the skydiving instructor’s case. Allegedly, the events occurred in this order: The instructor told a female jumper that he was gay to make her more at ease with their tandem jump. The woman told her boyfriend after the jump. The boyfriend complained to the employer. The employer fired the gay instructor.
If that scenario happened in New Jersey, the employee would have proof that he was a member of a protected class (sexual orientation,) that the employer knew about his orientation and that the employer took adverse action shortly after learning about his orientation. Assuming he also had proof that he was qualified to do his job, then he’d very possibly be considered to have the four things he would need for what the law calls a “prima facie” case of discrimination. At that point, the burden would fall to the employer to provide the court with some legitimate, non-discriminatory explanation for firing the employee and, if it could not, then the employee would win his case.
For skillful advocacy and clear advice upon which you can rely, contact the knowledgeable New Jersey employment attorneys at Phillips & Associates. Our attorneys have many years’ experience handling a wide spectrum of employment discrimination cases, including those affecting members of the LGBTQ+ community. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation and to find out how we can help.