Sexual preferences and employment discrimination in New Jersey

March 27, 2014

Sexual preferences and employment discrimination in New Jersey

Article provided by Lawrence N. Lavigne, Esq., L.L.C.
Visit us at http://www.lnlavignelaw.com

As reported by the Human Rights Campaign, Kimya in Michigan had a master's degree and almost 20 years' experience as a social worker. She was hired as a manager of an Alzheimer's Unit for a long-term care facility. She loved her job and felt confident she was good at what she was doing. Then came the threatening messages, the comments as she was passing in the hallways and vandalism to her car. Then came the end of her job--fired, for what her supervisor said was the cause of all the trouble--she was a lesbian. Angry, she looked for help, but in the state where she lived, there was simply no protection from discrimination based on sexual preferences.

Individuals who have suffered discrimination because of sexual preferences in employment practices have little to nothing in the current federal law to protect them. A recent development is worth noting, however. Last fall, the United States Senate passed the Employment Nondiscrimination Act which would ban employment discrimination based upon sexual preference or gender identification. The last time the Senate considered a similar measure was back in 1996 when the measure failed by a single vote. The current Senate legislation would cover all employers with more than 15 employees, although it contains exemptions for religiously affiliated employers. Not surprisingly, the Senate bill faces an uncertain future in the U.S. House of Representatives.

In the context of sexual harassment, the Supreme Court has weighed in Oncale v. Sundowner Offshore Services on the question of whether Title Vii of the Civil Rights Act operates in the context of same-sex sexual harassment. The court held that in such cases, the critical factor was not the gender of the victim and the harasser, but, rather, whether the harassment was "because of sex." The court recognized that such inferences were usually not obvious, but did offer some examples as guidance.

At home here in New Jersey, however, the social worker who was fired because she was a lesbian would likely have seen a different result because of laws passed by the New Jersey legislature. In New Jersey it is unlawful for any employer to refuse to hire or employ, to fire, or to otherwise discriminate in terms of compensation, working conditions, or privileges of employment anyone because of their marital status, civil union status, domestic partnership status, sexual orientation, or gender identity. It is also unlawful for an employer to use any form or application or to make any inquiry into any of the above protected categories. Certain religiously affiliated organizations are exempt for these requirements in certain circumstances.

For anyone who believes they have suffered any kind of employment discrimination or treatment, it is important that they seek the immediate advice of an attorney experienced in New Jersey employment law.