Throughout much of the country, LGBT discrimination is one of the few remaining socially acceptable forms of discrimination. People who would never admit to harboring any racist or sexist attitudes, will nonetheless proudly tout their homophobia as a moral badge of honor. These pervasive attitudes are reflected in federal law.  Disgracefully, despite significant legal advances when it comes to civil rights for gay, lesbian, bisexual and transgender persons in federal courts (such as the Supreme Court decision in Obergefell), no federal law specifically outlaws workplace discrimination in the basis of sexual orientation in the private sector.  Fortunately, New Jersey is more advanced, being one of only a handful of states that expressly prohibits workplace discrimination based on sexual orientation.   

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Sexual Orientation and Gender Identity Discrimination Law in New Jersey. New Jersey’s Law Against Discrimination (“LAD”) is one of the most progressive anti-discrimination statutes in the country. It applies to private and state employers of any size and specifically makes it illegal to discriminate “in compensation or in terms, conditions or privileges of employment” based on “affectional or sexual orientation.” This means that an employee who is fired, demoted, suspended or not hired  or promoted because they are gay or lesbian can sue the employer for money damages. Transgender persons are also protected. The LAD’s prohibition against discrimination based on “sex” extends to discrimination against an employee because he or she does not conform to a gender stereotype.

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Proving a case of LGBT discrimination is sometimes relatively easy. For example a foreman may actually tell a worker he is being fired because the foremen “doesn’t want a f****t” on his crew. If the employee sues, and witnesses tell the truth, the foreman’s illegal motives are obvious to a jury.

Other times, proving discrimination is much harder.  If an employer fires a gay employee, but lies about the reason and keeps his true homophobic motive to himself, there will be no direct evidence of discrimination. The employer might disingenuously claim that he did not even know the employee was gay.   In these cases, proving discrimination involves cutting through the lies in court and building a case out of circumstantial evidence.  It will take a skilled and determined lawyer with courtroom experience and a deep knowledge of employment law.

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LGBT Workplace Harassment in New Jersey. LGBT discrimination in the workplace does not always involve a concrete job action like a firing or a demotion.  Sometimes, the discrimination comes in the form of insults, slurs and bullying of an employee because of his or her sexual orientation or gender identity.  When this harassment is severe or frequent enough to be said to have affected the terms and conditions of employment, the victimized employee may have a “sexually hostile work environment” claim under the LAD.

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However it’s not that simple. This is because under the LAD you can’t usually sue the actual person who is harassing you.  Instead, you sue your employer for failing to protect you from the harassment. There are essentially two ways you to hold your employer liable for illegal harassment by another employee.

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​The first way is to prove your employer was negligent in failing to either prevent or correct the harassment.  Preventing harassment requires effective anti-harassment policy.  If your employer has no written anti-harassment policy prohibiting LGBT harassment, or if it has ignored previous complaints about LGBT harassment, your lawyer may be able to prove your employer was negligent in failing to prevent the harassment. 

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Negligence in correcting the harassment involves an employer taking effective remedial measures when it knows or should know the harassment is occurring. If you complain to your employer about harassment, or management witnesses it occurring, but no steps are taken to discipline the harasser or remove him from the work environment your lawyer may be able to prove your employer was negligent in failing to prevent the harassment.

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The second way to hold your employer responsible for harassment by another employee is based on agency principles. Your lawyer must show that your employer gave the harasser authority to control your work environment, and the harasser used that authority to make it hostile for you.

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How We Can Help. Lawrence & Gerges is a team of trial lawyers with more than more than 20 years experience and a string of courtroom victories in employment discrimination cases who can take your case all the way from the investigative phase  through settlement or trial against any employer no matter how big or small.

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If you believe your employer is discriminating against you due to your sexual preference of gender identity, we invite you to call us at (908) 845-3535 for a free consultation at our Springfield Offices. If you are comfortable with us, and we believe you have a strong enough case, we will be willing to represent you on a contingent fee retainer meaning we will not ask you for money up front, and will only get paid if and when we get money for you. (See Silvia’s blog, 5 Reasons Why You Shouldn’t Pay a Lawyer in an Employment Case.)

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