The New Jersey Law Against Discrimination (NJLAD) offers extensive protections against discrimination in the workplace and elsewhere. This includes factors like sexual orientation and gender identity or expression, which are not explicitly identified as protected categories under federal law or laws in many other states. Title VII of the Civil Rights Act of 1964 identifies five protected factors, including sex. Court decisions and amendments to the statute have expanded the federal definition of “sex discrimination” to include sexual harassment and pregnancy discrimination. Most federal courts have been reluctant to expand the definition further to encompass factors like sexual orientation. In April 2019, the U.S. Supreme Court agreed to hear appeals in two cases that involve sexual orientation discrimination claims under Title VII. The two appellate courts reached different conclusions, creating a circuit split. The Supreme Court also accepted a Title VII case alleging gender identity discrimination, despite the lack of a circuit split.
Employers in New Jersey may not discriminate against employees or job applicants on the basis of “affectional or sexual orientation.” N.J. Rev. Stat. § 10:5-12(a). State law defines this as various forms of “attraction or behavior” that are directed principally towards members of one particular gender or either gender. Id. at §§ 10:5-5(hh) – (kk). It includes a person’s actual “inclination, practice, identity or expression” of a particular orientation; a history of the same; or the perception of having a particular orientation. Id. at § 10:5-5(hh).
Some courts have concluded that Title VII’s prohibition on sex discrimination already includes discrimination on the basis of sexual orientation. Discriminating against an individual because of the gender or sex to which they are attracted is, in essence, discrimination on the basis of sex. A Supreme Court ruling that recognizes “sex stereotyping” as a form of sex discrimination under Title VII arguably supports this interpretation. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
Another decision that features prominently in these arguments recognized same-sex sexual harassment as a Title VII violation. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). While the Supreme Court’s opinion does not delve into the facts of the case, the Fifth Circuit’s earlier opinion mentions the many references to sexual orientation in the harassment of the plaintiff.
The two cases currently before the Supreme Court came from the Second Circuit, which recognized sexual orientation as a form of sex discrimination under Title VII, and the Eleventh Circuit, which reached the opposite conclusion. The Second Circuit initially affirmed the dismissal of the plaintiff’s claim in 2017, based on its own precedent. It heard the case again in 2018, after the plaintiff requested that it reconsider the case in light of a 2015 decision by the Equal Employment Opportunity Commission that cited both Price Waterhouse and Oncale.
The Eleventh Circuit took far less time to reject a Title VII argument. This was partly due to the U.S. Supreme Court’s rejection of the appeal of a 2017 Eleventh Circuit decision, which also held that Title VII does not apply to sexual orientation. In the present case, the court rejected the plaintiff’s claims on the same basis. The Supreme Court has scheduled arguments in the two cases in October.
If you are involved in a dispute with an employer in New Jersey or New York, the Resnick Law Group’s skilled and experienced employment lawyers are available to assist you. Please contact us at 973-781-1204, at 646-867-7997, or through our website today to schedule a confidential consultation to discuss your rights and options.