EEOC Addresses Best Practices for Avoiding Sexual Orientation and Gender Identity Discrimination in New Jersey Workplaces

In New Jersey, employment laws prohibit workplace discrimination on the basis of factors like sex, race, religion, disability, age, sexual orientation, and gender identity, to name but a few. This state was ahead of many other states in adding the latter two categories to its anti-discrimination statute. At the federal level, the Equal Employment Opportunity Commission (EEOC) determined some time ago that discrimination based on sex includes sexual orientation and gender identity discrimination. This conclusion, however, did not have the force of law. Federal anti-discrimination law did not include these categories until the U.S. Supreme Court reached essentially the same conclusion as the EEOC in 2020. Earlier this year, the EEOC published an article tracing the history of LGBTQI+ rights in the workplace and discussing best practices for employers under federal law.

According to the EEOC, only twenty-two states and the District of Columbia have employment laws that specifically prohibit discrimination based on sexual orientation or gender identity. New Jersey is among them. Significant improvements in LGBTQI+ rights probably began in 1973, when the American Psychiatric Association (APA) removed “homosexuality” from its list of psychiatric disorders. Two years later, Pennsylvania enacted the first state law against sexual orientation discrimination in employment. New Jersey followed with an amendment to the New Jersey Law Against Discrimination (NJLAD) in 1991.

A 2006 amendment to the NJLAD added “gender identity or expression” to the list of protected categories. New Jersey was actually ahead of the APA in this case. The organization did not remove “gender identity disorder” from its manual until 2012, replacing it with the diagnosis of “gender dysphoria.” Both the New Jersey Legislature and the APA remained ahead of the federal government on these issues.

The EEOC notes that nine states have expanded their definition of sex discrimination to include sexual orientation and gender identity. This is similar to the EEOC’s interpretation of federal law and the U.S. Supreme Court’s 2020 ruling in Bostock v. Clayton County. The EEOC issued a ruling in 2012 that found that the plain language of the ban on sex discrimination in Title VII of the Civil Rights Act of 1964 includes gender identity. It reached the same conclusion about sexual orientation in 2015. The Supreme Court’s decision held that discrimination based on either factor violates Title VII because it “intentionally treat[s] individual employees differently because of their sex.”

In tracing the history of LGBTQI+ rights, the EEOC goes all the way back to the 1940s and ‘50s, when workplace discrimination was often rooted in Cold War paranoia. It gets more hopeful and optimistic as the article goes on, of course, while noting that LGBTQI+ workers still face many challenges. Its recommended best practices for employers include:
– Updating policies to make it clear that Title VII prohibits sexual orientation and gender identity discrimination;
– Having systems in place to address “anti-LGBTQI+ remarks, actions, and conduct in the workplace”; and
– Making employees aware of their right to file EEOC charges.

If your employer has violated your rights under federal or state law, you need a skilled and experienced employment attorney who can help you assert a legal claim. The Resnick Law Group represents New Jersey and New York workers in discrimination claims involving sexual orientation, gender identity, gender expression, and other protected categories. To schedule a confidential consultation with a member of our team, please contact us today online, at 973-781-1204, or at 646-867-7997.

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