Legal protections for lesbian, gay, bisexual, and transgender (LGBT) individuals remain uncertain in many parts of the country, despite recent court victories. Fewer than half of U.S. states prohibit employment discrimination based on sexual orientation (the “LGB” part of the acronym) or gender identity (the “T” part). The New Jersey Law Against Discrimination (NJLAD) expressly prohibits both types of discrimination, but Title VII of the Civil Rights Act of 1964 only protects people from discrimination based on sex, race, color, religion, and national origin. A recent decision by the Equal Employment Opportunity Commission (EEOC), however, held that Title VII’s prohibition on sex discrimination already covers sexual orientation discrimination. Baldwin v. Dept. of Transportation, EEOC Appeal No. 0120133080 (Jul. 15, 2015) (PDF file). A 2012 decision, Macy v. Dept. of Transportation, EEOC Appeal No. 0120120821 (Apr. 20, 2012), held that this part of Title VII covers gender identity. These decisions only apply to federal employees, but they are still an important step forward. Most employment discrimination claims still require a careful analysis of federal, state, and city laws.
The complainant in the recent EEOC decision claimed that the Federal Aviation Administration (FAA) discriminated against him on the basis of his status as a gay man when it denied him a particular promotion, citing negative remarks allegedly made by his supervisor. The FAA dismissed his complaint as untimely, and he appealed to the EEOC. After finding that the complaint was timely, the EEOC ruled that the important question in a sexual orientation discrimination claim is not “whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions,” but “whether the agency has ‘relied on sex-based considerations’ or ‘take[n] gender into account’ when taking the challenged employment action.” Baldwin at 5-6, quoting Macy at 6. See also Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
The EEOC’s decisions in both Baldwin and Macy, interestingly, relied rather heavily on a Supreme Court decision written by Justice Scalia, who is not known for his support of expanded legal protections for LGBT individuals. The Supreme Court ruled in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), that a male oil-rig worker could sue for sexual harassment by male co-workers. Writing for a unanimous court, Justice Scalia stated that “statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils.” Baldwin at 13, quoting Oncale, 523 U.S. at 79.
Since the EEOC issued this ruling in a federal employee’s appeal of an agency action, it is only directly controlling on claims of sexual orientation discrimination by federal employees. Courts are not necessarily obligated to follow the ruling in Title VII claims against private employers. Employment discrimination statutes in as many as 29 states still do not expressly prohibit sexual orientation discrimination, although New Jersey and New York are not among them.
This disparity in legal protections between state and federal laws means that plaintiffs claiming discrimination based on sexual orientation or gender identity must carefully choose where to file suit. For example, a lawsuit filed in New Jersey federal court, Thomas v. Wawa, Inc., No. 1:15-cv-03345, complaint (D.N.J., May 14, 2015), alleged that a convenience store chain discriminated against a lesbian employee in violation of the NJLAD. The defendant moved to dismiss the case for lack of subject matter jurisdiction, claiming that it did not raise a federal question and did not meet the requirements for diversity jurisdiction. The plaintiff voluntarily dismissed the suit in August 2015, with plans to refile in New Jersey state court.
If you need to speak to an attorney about an employment discrimination matter in New Jersey or New York, contact the Resnick Law Group online, at 973-781-1204, or at 646-867-7997.
More Blog Posts:
Lawsuit Claims Gender Identity Discrimination under Title VII, The New Jersey Employment Law Firm Blog, April 2, 2015
Hundreds of Cities Enact Ordinances Prohibiting Sexual Orientation Employment Discrimination When States Fail to Take Action, The New Jersey Employment Law Firm Blog, September 16, 2014
Teacher Sues New York School, Alleging Discrimination and Firing Based on Age, Marital Status, Sex, and Sexual Orientation, The New Jersey Employment Law Firm Blog, July 7, 2014
Photo credit: By Fortuynist (en:US LGBT civil rights August 2008.png + updates.) [Public domain], via Wikimedia Commons.