What a New EEOC Guidance Document Regarding Sexual Orientation and Gender Identity Discrimination Means to Workers in New Jersey

It’s now been more than one year since the U.S. Supreme Court issued its landmark ruling in the case of Bostock v. Clayton County, which declared that federal law – specifically, Title VII of the Civil Rights Act of 1964 – prohibits employment discrimination based on sexual orientation and gender identity. This means that, if you’ve suffered that kind of harm in New Jersey, you could have two possible options: a federal Title VII claim and a New Jersey Law Against Discrimination claim. When it comes time to determine the best way to proceed with your sexual orientation or gender identity discrimination case, be sure to look to an experienced New Jersey employment discrimination lawyer for the advice you need.

On the occasion of the first anniversary of the high court’s ruling in the Bostock case (as well as the mid-point of Pride Month,) the U.S. Equal Employment Opportunity Commission issued a guidance document that laid out elements of the EEOC’s positions on gender identity and sexual orientation discrimination.

At the outset, the document reminds employers and employees about who isn’t covered by Title VII. If you work for a private employer, or for a state or local government, and your employer employs fewer than 15 people, then Title VII does not apply, and your employer is not at risk of potential federal liability for gender identity or sexual orientation discrimination.

If you work for a very small (<15) employer and you incur gender identity or sexual orientation discrimination, you need to be aware that the exemption mentioned in the preceding paragraph applies only to federal law. In other words, if your employer has fewer than 15 employees, you can’t have a Title VII claim, but you potentially can still proceed under the Law Against Discrimination, no matter how few employees your employer has.

Sexual Orientation/Gender Identity Discrimination and Non-LGBT+ Victims

Also, as the EEOC document notes, any kind of sexual orientation or gender identity discrimination is potentially actionable under Title VII, not just discrimination against LGBT+ people. That includes discrimination against workers targeted because they are heterosexual or cisgender. Although instances of this kind of discrimination are comparatively much less common, they can (with sufficient proof) still be the foundation of a winning Title VII case.

There are other ways you can be the victim of sexual orientation or gender identity bias even if you’re not a member of the LGBT+ community. For example, as the EEOC document reminds readers if your employer takes an adverse action (like termination, demotion, suspension, refusal to hire, etc.) against you because your employer views you as too effeminate, too “flamboyant”, or otherwise insufficiently masculine in your actions and/or appearance, you may have a viable case, even if you were a heterosexual, cisgender man.

What the Employer Believed is Key

Although not included in the guidance document, there’s another rule of employment discrimination law that you should bear in mind when it comes to this type of discrimination. Specifically, the key to your case is not what your sexual orientation and/or gender identity is, but what your employer thought it was. So, if your employer fired you because they thought you were a lesbian, then you have the potential to win a sexual orientation discrimination case, even if you’re a straight woman.

Of course, bathrooms have been in the news a lot lately. The EEOC document makes it clear that, in the view of the commission, if the employer has gender-segregated bathrooms (or locker rooms, showers, etc.), then the employer cannot deny a trans worker the right to use the facilities that conform to his/her/their gender identity.

Another topic in the news a lot recently is pronouns. Enduring the indignity of being “deadnamed” (the act of being called by your pre-transition name) or having someone not use your correct pronouns can constitute illegal workplace discrimination or harassment in some circumstances. The law says that this kind of misconduct must be severe or pervasive. So if, for example, you’re a trans woman who’s repeatedly called “Richard” instead of “Rachel” at work or constantly called “he” instead of “she,” then you could have a viable case under the argument that the harm you suffered was sufficiently pervasive.

Sexual orientation discrimination and gender identity discrimination are areas of the law that are relatively new and continuing to evolve, especially at the federal level. If you’ve endured this kind of harm in your professional life, you need a legal advocate who is fully versed in all the details of this area of the law, including the latest developments, both on the federal and state sides. Count on the experienced New Jersey gender identity and sexual orientation discrimination attorneys at Phillips & Associates to be the kind of effective advocate you need to help you achieve a just and successful outcome for your case. Contact us online or at (866) 229-9441 today to set up a free and confidential consultation.

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