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Monday, January 9, 2017

Lesbian, Gay, Bisexual, Transgender Harassment More Subtle as Laws Afford Protection

The evolution of discrimination law in New Jersey that protects the rights of lesbian, gay, bisexual, transgender persons in their places of employment, put employers on notice they could be held liable if they allow discrimination or harassment of LGBT persons. Another evolution in the law that made employers more cognizant, albeit in a more general manner, of the rights of equality for gays and lesbians, was the legalization of same sex marriages. The discrimination of LGBT persons in the workplace has not gone away however; it appears in forms more subtle, driven underground in the ranks of management in attempts to evade liability.

The U.S. Supreme Court on June 26, 2016 in Obergefell et al. v. Hodges, Director, Ohio Department of Health, et. al., ruled against laws that states passed which limited marriage to only heterosexual couples. The state of New Jersey in 2013 settled this issue of same-sex marriage in NJ when on October 21, 2013, New Jersey Gov. Chris Christie dropped his legal challenge to same-sex marriage throughout the state. Prior to this, Christie had opposed the legalization of same-sex marriage in the courts. In 2012 he vetoed a bill in the NJ Legislature that would have allowed it. His decision in 2013 to withdraw his appeal of a NJ Supreme Court case, brought a finish to the legal struggle whether NJ law recognizes same-sex marriages. Christie’s dropping of the appeal meant that a lower-court ruling which allowed same-sex couples to marry in New Jersey remained as the law. New Jersey was the 14th state to legalize gay marriage and the first state to do so following the U.S. Supreme Court's decision in June of 2013 striking down the Defense of Marriage Act. The U.S. Supreme Court’s decision in Obergefell et. al., while far reaching as to the reception of the right of gays and lesbians to marry, has not necessarily affected some employers’ practices of non-compliance with anti-discrimination statutes for those who are LGBT.

The New Jersey Law Against Discrimination (N.J.S.A. 10:5-12) (LAD) makes it unlawful to subject people to differential treatment in employment based on protected classes which includes sex, familial status, marital status, domestic partnership or civil union status, affectional or sexual orientation, gender identity or expression. 

Despite the evolution of discrimination laws, workplace discrimination based on sexual orientation, gender identity and gender expression still exists. Some workplaces and are simply not tolerant of employees who are LGBT, particularly when they are “out” and not in the closet. This can have the unfortunate effect of a cloud of “don't ask- don't tell” in the workplace which is not only not psychologically unhealthy but also illegal. When LGBT employees are openly “out” in the workplace, they may be illegally held to a higher standard than other non-LGBT workers so that the employer will have a pretext to fire them.

I have successfully represented clients in numerous employment cases where as soon as management discovers that employee is gay or transgender, everything in the employment relationship takes a turn for the worse. Where before there was support, now there is criticism. Where before the employee was on the fast track for advancement, now he/she is denied the training needed to advance. 

It is now not politically correct to call an employee negative epitaphs because of the employee’s sexual orientation, gender identity or gender expression status. Nevertheless,  harassment continues.

Some examples of sexual orientation, gender identity and gender expression harassment include:

  • Comments made not directly to the LGBT individual, but made within his/her earshot to others joking about sexual orientation, gender identity or gender expression.
  • Calling employees names due to their sexual orientation, gender identity or gender expression.
  • Holding the employee to a higher business standard than other non-LGBT employees.
  • Making up excuses to mention the sexual orientation status of an employee on a pretext it might serve some business purpose.
  • Constantly mentioning or alluding to the employee's sexual orientation, even if not in a negative manner, particularly when there is no relation to a work matter.
  • Management not offering training that is offered to straight employees.

My history of being an advocate for the rights of gays and lesbians goes back far. In 1998, the Rutgers Law Library reserved for reading on their premises, an essay authored by me on a model clients' counseling session designed for attorneys who are advising same-sex couples who want to make lifetime commitments to one another and start a family. In it, I articulated many legal protections that the couple should subscribe to that would give them protections as close as possible at that time, as to a married heterosexual couple. Some of these protections detailed all of the necessary contractual agreements that they should place into formal legal contractual writing, Powers of Attorney, Appointment of Health Care Representative, and much estate planning including testamentary trusts naming a guardian for any minor children of the parenting couple in the event both pre-decease their children.  

I advocated for the rights of gays and lesbians to legally marry because not even with the aforementioned protections in place, there still would be no real equality for same-sex couples and their children unless the law evolved to the point that same sex couples were allowed to fully marry, that only a change in the law to allow a same-sex couple to marry would afford these couples and their children the same rights as heterosexual couples and their children.

This was several years prior to when New Jersey Legislature enacted the Domestic Partnership Act, which came into effect on July 10, 2004. That law made domestic partnerships available to all same-sex couples, as well as to different-sex couples aged 62 and older. The domestic partnership statute provided limited property, healthcare, inheritance rights and other rights and obligations but did not approach the entire spectrum of rights and obligations afforded to married couples.

My advocating for the rights of gays and lesbians to marry was also prior to The Civil Union Act  which took effect on February 19, 2007. Under the Civil Union Act, same-sex couples who enter into a Civil Union under the Act were provided many the rights granted to married couples under New Jersey state law, but not federal law. Gay and Lesbian couples at that time did not have any right or entitlement to over 1,000 rights that a married couple had under federal law.

What You Can Do

If you feel your employer is discriminating against you because of your sexual orientation, gender identity or gender expression status, it is important to consult with an aggressive and experienced employment attorney  who is passionate about your civil rights.

If you complained about such discrimination, and your employer then retaliated against you, you may also have a claim for retaliation. If you believe you are being subjected to such unlawful workplace discrimination or retaliation, please contact Hope A. Lang, Attorney at Law today for a free consultation. Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Central, Western and Northern NJ to meet with clients.

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