Even With Robust State LGBTQ Anti-Discrimination Laws, Landmark Supreme Court Ruling Will Be Felt in New Jersey
In New Jersey, where robust protections for gays, lesbians and transgender people are written into state law, the court's decision will have an impact, albeit in more subtle ways.
June 18, 2020 at 09:00 AM
5 minute read
As LGBTQ rights advocates celebrated Monday's landmark ruling from the U.S. Supreme Court, making it a violation of Title VII to fire someone for being gay or transgender, some in New Jersey might have wondered about the decision's local impact.
The decision will have the greatest impact in roughly half of the states in the United States—those that provided no legal protections to gays, lesbians and transgender persons. But in New Jersey, where state law bars discrimination against gays, lesbians and transgender people, the court's decision will have a more subtle impact.
New Jersey amended the state Law Against Discrimination to forbid workplace discrimination based on sexual orientation in 1991, and barred firing someone over their gender expression in 2006.
But this week's Supreme Court decision in Bostock v. Clayton County will provide additional protection in some areas outside the reach of New Jersey's LAD. Some workers in New Jersey who experience discrimination who are not covered by the LAD now have a comparable level of protection, said Kevin Costello of Costello & Mains in Mount Laurel, New Jersey, who represents plaintiffs in employment litigation.
"There are thousands and thousands of workers in New Jersey, at a minimum, who, until today, did not have the protection of this decision," Costello said.
Some of those workers in New Jersey are employed by multistate companies which have their employees sign agreements binding them to the laws of other states where their company operates, which may not have laws protecting LGBTQ workers from discrimination, said Costello. After Monday's ruling, those workers are still subject to laws of the other jurisdiction, but that won't leave them without protections based on their sexual orientation or gender expression status, he said.
In addition, employees who work in New Jersey for a bistate agency might not fall under New Jersey's LAD, but now they have a comparable level of protection for sexual orientation and gender expression discrimination, said Costello. Also, employees who work in New Jersey for certain federal contractors are exempt from New Jersey's LAD, but now they are covered by a comparable level of protection under the Supreme Court ruling, he said.
The ruling will also have an impact on defendants in New Jersey employment litigation who attempt to introduce case law on Title VII from other states, which tends to be less friendly to workers, Costello said. "It sends the signal to employers who are attempting to import federal Title VII jurisprudence around these issues that those cases are over," Costello said.
In addition, the ruling makes federal court litigation of discrimination claims related to sexual orientation or gender expression a more viable option, said Thomas Prol, a Sills Cummis & Gross attorney who has analyzed the Bostock case in his class on law and sexuality at Seton Hall University School of Law. After Monday's ruling, a litigant in federal court can cite the court's decision, rather than merely rely on Equal Employment Opportunity Commission opinions, which are generally supportive to gays and lesbians but are subject to shifting political influences, Prol said.
Having similar positions from state and federal laws on discrimination against LGBTQ people makes for a case that is "more sturdy," without the "hybrid analysis" in which state laws find discrimination where federal law does not, Prol said.
"For New Jersey, it just harmonizes federal and state law in many respects. New Jersey has been so prescient on this that the federal courts will look to our analysis with favor," Prol said.
Monday's Supreme Court decision will be felt by federal employees in New Jersey who aren't covered by the LAD, said Leslie Farber, a labor and employment attorney in Montclair. Employment disputes involving those employees have relied on EEOC rulings, but the ruling gives those rights a more solid foundation, Farber said.
"Now, it's firmly ingrained for federal employees in New Jersey that this is the law," said Farber.
In addition, the Supreme Court ruling could strengthen health care rights in ways that are beyond the reach of the NJLAD, Farber said.
The Supreme Court decision also calls into question a Trump administration regulation, announced June 12, that eliminates protection for transgender patients from discrimination by doctors, hospitals and health care providers, Farber said.
That rule is likely to be litigated, and proponents for protecting transgender patients from discrimination can rely on the Supreme Court ruling, Farber said.
Monday's 6-3 ruling, by Justice Neil Gorsuch, concerns a man who was fired from his job after joining a gay softball league, another who was fired after mentioning he was gay, and a transgender woman who had previously presented as male but was fired from her job after telling her employer she planned to live and work full time as a woman. The court said an employer who fires an individual merely for being gay or transgender violates Title VII.
Justices Brett Kavanaugh and Samuel Alito Jr. wrote dissents, with Justice Clarence Thomas joining Alito's.
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