The New Jersey Employment Law Firm Blog
Federal employment anti-discrimination law identifies five protected categories: race, color, religion, national origin, and sex. Court decisions have added nuance to these categories, particularly with regard to sex discrimination. Most courts, in interpreting federal law, have been unwilling to extend the law’s prohibition against discrimination on the basis of sex to include factors like sexual orientation or gender identity. New Jersey and other states have amended their own anti-discrimination laws to include specific protections against these forms of discrimination in employment, housing, and other areas. The U.S. House of Representatives passed H.R.5, known as the Equality Act, in May 2019. The bill would amend federal law to match anti-discrimination laws in states like New Jersey.
The New Jersey Law Against Discrimination (NJLAD) includes “affectional or sexual orientation,” “sex,” and “gender identity or expression” in its list of protected categories. N.J. Rev. Stat. § 10:5-12(a). The law defines “affectional or sexual orientation” as a person’s actual, perceived, or presumed orientation with regard to “affectional, emotional or physical attraction or behavior” towards members of the opposite gender, one’s own gender, or either gender. Id. at § 10:5-5(hh) – (kk). “Gender identity or expression” refers to a person’s actual or perceived identity or mode of expression that might not be “stereotypically associated with a person’s assigned sex at birth.” Id. at § 10:5-5(rr). This may include people who identify with a different gender than the one assigned at birth, or people who identify as non-binary.
Title VII of the Civil Rights Act of 1964 does not include protections against discrimination based on sexual orientation or gender identity or expression, at least officially. The Equal Employment Opportunity Commission has taken the position that the statute’s prohibition on sex discrimination includes prohibitions on both additional forms of discrimination. The Seventh Circuit Court of Appeals reached the same conclusion regarding sexual orientation in 2017, followed by the Second Circuit in 2018. The U.S. Supreme Court has agreed to hear the appeal of the Second Circuit’s ruling, alongside the appeal in an Eleventh Circuit case that reached the opposite conclusion. It will also hear the appeal of a Sixth Circuit decision applying Title VII to a gender identity discrimination claim.
Several of these court rulings were based, at least in part, on a Supreme Court decision about discrimination on the basis of “sex stereotyping,” Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). That case found that discrimination based on a failure to conform to various gender stereotypes, such as how a member of a particular gender should act or dress, violates Title VII. Many incidents of discrimination based on sexual orientation, gender identity, and gender expression are fundamentally about gender stereotypes, according to these rulings.
Section 2 of the Equality Act describes how sex stereotyping can lead to discrimination against LGBTQ individuals in employment and elsewhere. The bill amends Title VII by replacing the word “sex” with “sex (including sexual orientation and gender identity).” H.R. 5 § 7(b) (116th Cong., May 17, 2019). It also adds definitions of these terms, which are similar to those found in the NJLAD. Its companion bill, S. 788, is unlikely to receive a vote any time soon, but the House’s passage of the bill is still an important step forward.
The knowledgeable and experienced employment lawyers at the Resnick Law Group advocate for the rights of workers in New Jersey and New York. Please contact us at 973-781-1204, 646-867-7997, or online today to schedule a confidential consultation to see how we can help you.