By: Naomi D.G. Franco, Esq.
Discrimination against LGBTQIA+ employees is against the law. Unfortunately, all too often folks continue to experience discrimination based on their gender identity and expression in the workplace. Although there are Federal Laws which forbid discrimination on the basis of gender, New Jersey Law often goes further and provides for more protections than Federal Law. New Jersey members of the LGBTQIA+ community who have been targeted or otherwise discriminated against by their employer based on gender identity or expression have several options to protect themselves.
New Jersey Has Some of the Strongest Protections in the Country for LGBTQIA+ Employees
In New Jersey, members of the LGBTQIA+ community have multiple avenues for relief when they have been subject to discrimination based on gender identity or expression, including damages for both monetary loss and emotional damages. Since 2006, the New Jersey Law Against Discrimination (“NJLAD”) expressly lists “gender identity or expression” as a protected characteristic, making it unlawful to refuse to hire, fire, demote, harass, or deny equal benefits to LGBTQIA+ employees. A Federal Law, Title VII of the Civil Rights Act, similarly prohibits discrimination in the workplace including discrimination based on gender identity. However, there are some limitations which make bringing a claim under the NJLAD in New Jersey State Court more approachable.
- Title VII only applies to employers who have 15 or more employees, but in New Jersey, all employees are protected. That’s because every single employer in the State must comply with the NJLAD, regardless of how many people they employ, including those with just one employee.
- An employee who brings a claim in Federal Court under Title VII is limited in the amount of damages they can recover. An employee’s damages are limited under Title VII and the recoverable damage amounts range from $50,000 to $300,000 depending on the size of the employer.
- On the other hand, claims brought in New Jersey State Court under the NJLAD are not subject to any damages cap and thus can be more lucrative in both what a Plaintiff can be awarded and adds an extra incentive for employers to avoid litigation.
- Another limitation is that Title VII does not provide for individual liability. This means that the individual actually committing or allowing the discrimination to occur may not be held accountable. In New Jersey, an individual can be held liable under the NJLAD for aiding and abetting discriminatory conduct by an employer and may even be held liable for their own harassing conduct.
Protections for LGBTQIA+ Employees Under the New Jersey Law Against Discrimination
Employees in New Jersey are protected by the NJLAD and have the right to be free from discrimination in the workplace based on their gender identity or expression.
Practical Workplace Rights Under NJLAD
- Pronouns and Names: accidental misuse of an employee’s pronouns,
name or title may not in itself violate the NJLAD. However, intentionally or repeatedly using the incorrect pronouns or name preferred by an employee will constitute discrimination and harassment under New Jersey
Law. - Dress Codes: employers must respect an employee’s affirmed gender identity including choice of dress and appearance, unless a dress or grooming rule is “reasonable” and applied consistently to all employees in
the workplace. Even then, accommodations must be made to allow an employee to express their affirmed gender identity unless such accommodation causes hardship to the employer or violates a policy. 1 - Restrooms and facilities: employees must be allowed to use the facilities that correspond to their gender identity and an employer is not permitted to demand “proof” of gender or otherwise deter an employee from using facilities which correspond to their gender identity. 2
- Benefits parity: health-coverage, leave, and other perks offered to cisgender employees must be offered on equal terms to LGBTQIA+ employees.
- Anti-harassment duty: once the employer “knows or should know” of harassment or discrimination occurring in the workplace based on an employee’s gender identity or expression, it must take prompt, effective
steps to stop the harassment or discrimination. - Protection Against Retaliation: it is against the law in New Jersey for an employer to retaliate against a person for complaining about, reporting, or cooperating in an investigation of alleged discrimination or biased-based harassment.
1 https://www.njoag.gov/wp-content/uploads/2021/03/fact_LGBTQI_Employ.pdf
2 https://www.njoag.gov/wp-content/uploads/2021/03/fact_LGBTQI_Accomm.pdf
How to Enforce Your Rights—Two Tracks.
The Administrative Route:
- The New Jersey Division on Civil Rights (DCR) is a New Jersey Administrative Agency which enforces several state laws including the NJLAD.
- If an employee has experienced discrimination, including based on their gender identity or expression, they can file a verified complaint with the DCR within 180 days of the last discriminatory act.
- The DCR can investigate, mediate, and issue findings; remedies available include back-pay, emotional-distress damages, policy changes, and sometimes penalties paid to the State.
Direct Lawsuit Route:
- An employee may bypass the DCR and sue directly in the New Jersey Superior Court under the NJLAD for discrimination based on gender identity and expression. Often times, this is a much quicker and more
effective option than filing with the DCR. - The statute of limitations for bringing a claim under the NJLAD in New Jersey Superior Court is two years, and available relief may include back- pay, front-pay, emotional-distress and punitive damages and
reinstatement. - The NJLAD also provides for attorney fees. This means that attorneys who represent an employee experiencing discrimination may recover their fees from the employer if a jury finds that the employer violated the law. This further incentivizes attorneys to represent employees who have been terminated and are experiencing financial hardship.
Key Takeaways for Employees Experiencing Discrimination Based on Gender Identity or Expression:
- Document the Discrimination: If you feel that you are being discriminated against based on your status as an LGBTQIA+ person, make sure to keep contemporaneous notes, save emails/texts, and identify witnesses who have seen or heard of the discrimination.
- Act Quickly: If you are terminated, retaliated against, or experience some other form of punishment which you believe was based on your status as an LGBTQIA+ person, you have two years to file a lawsuit in New Jersey State Court and 180 days to file a complaint with the DCR.
- Seek legal advice early—lawyers can often negotiate policy changes or settlements before litigation.
Contact Us:
Our firm is dedicated to helping those experiencing discrimination at work. If you believe you have been discriminated against due to your gender identity or expression, call and speak with one of our seasoned employment attorneys. We offer free consultations and are committed to treating all our potential clients with the utmost care and respect.