What protects LGBTQ people from discrimination?
People of an LGBTQ identity have not been firmly protected by law from discrimination in the workplace until recently, and even now, people challenge these protections on the basis of religious beliefs or otherwise. In February, the gay community scored a significant win when a federal judge ruled that Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination based on sexual orientation. In the case, Zarda v. Altitude Express, a sky diving instructor was fired when he disclosed to a client that he was gay, and that client’s boyfriend complained to management. They also alleged that Zarda, now deceased, had touched the client inappropriately, which Zarda’s family denies.
The decision in the Zarda case, ruling in Zarda’s favor, was the second of its kind to decide that sexual orientation discrimination was covered under the umbrella of sex discrimination. In April of 2017, the seventh circuit court of appeals ruled in favor of Kimberly Hively who claimed that a school denied her employment after discovering that she was romantically involved with another woman. However, these two cases did not by any means end the hardships and discrimination facing LGBTQ people in the workplace, and employment attorneys and their LGBTQ clients continue to fight for justice for this community.
Even before these two landmark court cases, the Equal Employment Opportunity Commission already held the opinion that discrimination based on sexual orientation constituted sex discrimination as described under Title VII and argued for Zarda in his case, despite the Justice Department deciding to make a public statement against this position. This statement did not have any bearing on the case itself.
Certain states have laws in place prohibiting discrimination. The New Jersey Law Against Discrimination specifically prohibits discrimination based on sexual or affectional orientation. It explicitly mentions those classes protected (excerpt from the NJ Office of the Attorney General Civil Rights Fact Sheet):
- Gender Identity or Expression, which is an internal, personal sense of being a man or a woman, or an external showing of one’s gender identity, usually through “masculine” or “feminine” haircut, attire, voice, or body characteristics
- Transgender, which is a person whose gender identity and/or expression differs from the sex they were assigned at birth
- Bisexuality, which is attraction to people of both genders
- Homosexuality, which is attraction to people of the same gender
- Heterosexuality, which is attraction to people of the opposite gender
The LGBTQ community is one of the most-discriminated against classes in the country. Twenty-one percent of LGBTQ employees in the United States reported “that they have been discriminated against in hiring, promotions and pay,” according to UCLA’s William Institute. This is staggering, and if you have been denied a job interview or a promotion, have been fired, or have been otherwise discriminated against in employment on the grounds of your LGBT identity, you can take action. However, don’t wait until it is too late—both the Equal Employment Opportunity Commission and the New Jersey Division on Civil Rights take complaints of discrimination based on sexual orientation and gender identity, and both of these entities have a 180-day limit to file a charge since the last act of discrimination you faced. The New Jersey Superior Court takes actions within 2 years since the act of discrimination. Contact Castronovo & McKinney today to get started.