Current Events

The evolution of discrimination law in New Jersey that protects the rights of lesbian, gay, bisexual, transgender persons in their places of employment, placed employers on notice they could be held liable if they allow discrimination of LGBT persons. As a result, lesbian, gay, bisexual, transgender discrimination has become more subtle as laws afford protection to LGBT employees.

LGBT Employees Who Do Substantially Similar Work as Their Non-Protected Co-Workers Should Receive Comparable Compensation, Regardless of Their Job Title.

Under the new amendments to the NJLAD, effective July 1, 2018, it is illegal for an employer to pay any of its employees who is a member of a protected class at a rate of compensation which is less than the rate paid by the employer to employees who are not members of the protected class for substantially similar work, when viewed as a composite of skill, effort and responsibility, regardless of their job title. Employees who are members of a protected class under the NJLAD who are paid the same hourly wage as non-protected employees for doing substantially similar work may possibly have a claim regardless of their job title, if there is a disparity of benefits based on their protected class.

Despite the evolution of discrimination laws, workplace discrimination based on sexual orientation, gender identity and gender expression still exists. Some workplaces 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. Whether or not the LGBT employees are openly "out" in the workplace, the employer may illegally hold them to a higher standard than other non-LGBT workers so that the employer will have a pretext to not offer them tools for career advancement and higher compensation.

I have successfully represented clients in 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.

Under the New Law, Compensation Is Not Just the Hourly Wage or Yearly Salary; Compensation Includes Employee Benefits.

The statute states:

For the purposes of this subsection, an unlawful employment practice occurs, with respect to discrimination in compensation or in the financial terms or conditions of employment, each occasion that an individual is affected by application of a discriminatory compensation decision or other practice, including, but not limited to, each occasion that wages, benefits, or other compensation are paid, resulting in whole or in part from the decision or other practice.

While health insurance and retirement plans immediately come to mind when one thinks of employee benefits, there are many other types of benefits some which may result in periodic or yearly pecuniary gain such as bonus plans and commissions. Other employee benefits may not be as obvious but could have a dramatic effect on future income. If you are a member of a protected class (by way of example: lesbian, gay, a female, black or other racial minority, etc.) and your employer pays you the same hourly wage as paid to non-protected class employees who do substantially similar work, but you still sense you are not being treated equal under the law,

You May Ask Yourself These Questions:

• Are lesbian, gay, bisexual or transgender persons not given memberships to gyms, exercise clubs, while heterosexual employees who do substantially the same work are given memberships?

• Are non-protected employees given training to be able to advance, while protected class employees who do substantially the same work are not given training to advance?