New Jersey Employment Lawyer Blog
The new U.S. Supreme Court decision in the case of Bostock v. Clayton County is rightly considered as a landmark in discrimination law, establishing conclusively that anti-LGBT+ discrimination is illegal discrimination under federal law. While most New Jersey workers were already protected from workplace sexual orientation or gender identity discrimination under long-standing protections written into New Jersey’s Law Against Discrimination, not all were. The new ruling offers some very significant help for some other workers in the Garden State… and that number could grow in the not-too-distant future. If you have been the victim of sexual orientation or gender identity discrimination at work, be sure to consult an experienced New Jersey employment attorney to find out about your options under state or federal law (or both.)
Employment discrimination because a person is gay, lesbian or bisexual has been a violation of the Law Against Discrimination for nearly three decades. Workplace discrimination against trans people has been against the law in New Jersey since 2006. Not all Garden State workers, however, are covered by the Law Against Discrimination’s protections. For those people, the new federal ruling could have profound impacts.
The ruling in the Bostock case makes it clear that discrimination against LGBT+ workers is discrimination “because of sex,” which is barred under Title VII of the federal Civil Rights Act. This development in federal law is a huge benefit for federal workers here in New Jersey. The law says that, if you are a federal government worker, you are only allowed to pursue discrimination claims based on federal law, not state law. The Law Against Discrimination’s protection would do nothing for a trans person who’s a federal worker in Newark. The ruling in the Bostock case, however, would give that person a very viable claim of discrimination in violation of Title VII.
Some people work in New Jersey but aren’t protected by New Jersey anti-discrimination law
Federal workers aren’t the only ones who stand to benefit from this development in federal law. Many New Jersey workers work for entities based outside the Garden State. When they started their new jobs, they signed employment contracts, many of which had paragraphs that declared that another state’s laws would control in the case of a discrimination dispute between employee and employer. (These are called “choice of law” provisions.) If that state has no protections for discrimination against LGBT+ people, then those workers previously had no protection.
So say, for example, you are a gay man who signed an employment agreement with your Cleveland-based employer that says that Ohio law controls discrimination disputes between you and your employer. Before the Bostock ruling, you would have had no recourse for sexual orientation discrimination, even though you worked every day in an office in East Rutherford. The Law Against Discrimination would not be applicable and Ohio law does not ban sexual orientation discrimination. Now, you potentially have a straightforward case under Title VII.
Another group possibly impacted are independent contractors. Generally, independent contractors are not protected by either state or federal anti-discrimination laws, but that could change. Late last year, U.S. Rep. Eleanor Holmes Norton proposed H.R. 4235, a bill that would “require that individuals who perform work for employers as independent contractors be treated as employees.”
If Rep. Holmes Norton’s bill (or one similar to it) becomes law, then independent contractors who suffer discrimination based on their sexual orientation or gender identity could have a possible Title VII case under federal law. Some independent contractors may already be protected by anti-discrimination laws if they can prove to a court that their employer exerted a high degree of control over the “manner and means” by which they did their work.
Whether or not your employment situation is one that is protected by New Jersey law’s prohibitions against discrimination, the recent ruling by the U.S. Supreme Court is a substantial step for protecting LGBT+ people from discrimination in the workplace. Regrettably, that kind of discrimination will inevitably continue to happen. When it happens to you, reach out the knowledgeable New Jersey employment attorneys at Phillips & Associates. Our team has helped numerous clients harmed by sexual orientation or gender identity discrimination on the job, and is ready to get to work for you. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation.