While New Jersey Employment Law Prohibits Discrimination Based on Sexual Orientation, U.S. Supreme Court Denies Petition to Review Extent of Federal Law

LGBT flag mapThe New Jersey Law Against Discrimination (NJLAD) is among the most expansive anti-discrimination statutes in the country, protecting employees from discrimination on the basis of multiple factors, including sexual orientation. Title VII of the federal Civil Rights Act of 1964 has far fewer expressly protected categories. Some federal courts have ruled in favor of plaintiffs claiming sexual orientation discrimination under Title VII, finding that the statute’s prohibition on sex discrimination encompasses sexual orientation as well. Other courts have ruled that sexual orientation discrimination is not discrimination on the basis of sex within Title VII’s meaning. The U.S. Supreme Court rejected a petition for certiorari in late 2017 that raised this question, Evans v. Georgia Regional Hospital. Since a conflict exists among lower court rulings on this issue, it is likely that the Supreme Court will accept a case at some point in the future.

The NJLAD states that an employer commits an unlawful employment practice by discriminating on the basis of “affectional or sexual orientation.” N.J. Rev. Stat. § 10:5-12(a). Title VII only mentions five factors:  “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The U.S. Supreme Court has clarified the legal meaning of “sex” under Title VII in several rulings. This includes recognition of sexual harassment and “sex stereotyping” as forms of unlawful sex discrimination.

Many Title VII lawsuits alleging sexual orientation discrimination have cited the “sex stereotyping” ruling, which held that “assuming or insisting that [employees] matched the stereotype associated with their [sex]” could be evidence of sex discrimination. Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). Another commonly cited decision ruled in favor of a male plaintiff alleging sexual harassment by male co-workers, reportedly based on their negative perceptions of the plaintiff’s sexual orientation. The court held that harassment does not need to “be motivated by sexual desire” to constitute sexual harassment, and therefore sex discrimination, under Title VII. Oncale v. Sundowner Offshore Services, 523 U.S. 75, 80 (1998).

The plaintiff in the Evans case worked as a security officer for a Georgia hospital. She alleged discrimination ranging from denial of equal pay and work opportunities to physical assault because of her sexual orientation as a lesbian. While she stated that “she did not broadcast her sexuality,” she said that the discrimination largely derived from her “fail[ure] to carry herself in a ‘traditional woman[ly] manner.’” Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1251 (11th Cir. 2017). She alleged discrimination under Title VII based on sexual orientation, as evidenced by sex stereotyping.

The district court dismissed the plaintiff’s complaint sua sponte, which it had the authority to do because she had filed suit in forma pauperis. A court may dismiss such a lawsuit on its own motion for “fail[ing] to state a claim on which relief may be granted,” much like Rule 12(b)(6) of the Federal Rules of Civil Procedure. 28 U.S.C. § 1915(e)(2)(B)(ii). The Eleventh Circuit, in a 2-1 ruling, affirmed the dismissal, finding that the court is bound by a precedent decision holding that “discharge for homosexuality is not prohibited by Title VII.” Evans, 850 F.3d at 1255, quoting Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979). On December 11, 2017, the Supreme Court denied the plaintiff’s petition.

If you need to speak to a sexual orientation discrimination attorney about a matter in New Jersey or New York, contact the Resnick Law Group today online, at 973-781-1204, or at 646-867-7997.

More Blog Posts:

New York Appellate Court Asked to Reconsider Whether Title VII Prohibits Sexual Orientation Discrimination, The New Jersey Employment Law Firm Blog, March 17, 2017

EEOC Rules that Title VII Already Prohibits Employment Discrimination Based on Sexual Orientation, at Least in Some Cases, The New Jersey Employment Law Firm Blog, August 14, 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

Photo credit: File:New Jersey Outline Shaded map.svg, Gay_flag.svg; derivative work: Fry1989 00:38, 11 January 2012 (UTC) [CC BY-SA 3.0], via Wikimedia Commons.

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