Last week (as I write this), I had the privilege of presenting an employment law seminar at the New Jersey Institute for Continuing Legal Education’s Summer Institute Series. (Yes, the air-conditioning fortunately worked.) My goal was to provide an update and overview of “protected characteristics” under the New Jersey Law Against Discrimination (the “LAD,” for those in the know), and the key court cases that have interpreted the potential traps and gray areas in the LAD. In this blog post, I thought it would be useful to recap some of the concepts we discussed.
When it comes to the LAD, here’s the bottom line. As Benjamin Franklin famously said, “When in doubt, don’t.” It seems simple enough – if you’re unsure about whether something could be considered discriminatory or harassing against others in the workplace: Don’t do it. (It’s the opposite of the Nike marketing campaign…) By treating all applicants and employees equally and based solely on their job qualifications and performance, employers obviously can avoid workplace complaints, foster morale and productivity, and limit the chances of an expensive lawsuit for unlawful discrimination and harassment. (If you’re an employer, you should constantly remind your managers and employees that the workplace is not a locker room.)
From the employee’s perspective, it’s important to know which of your unique characteristics protect you from workplace discrimination and harassment under the LAD.
The LAD has actually been around since the 1940s and was the nation’s first state-enacted civil rights statute. In recent years, the Legislature has passed several critical amendments that protect additional individual characteristics against discrimination and harassment. Most employers know the basics: Section 10:5-12 of the LAD makes it unlawful to subject people to discrimination or harassment based on race, creed, color, national origin, nationality, ancestry, sex, pregnancy, breastfeeding, sexual orientation, gender identity or expression, disability, age, familial status, marital status, domestic partnership or civil union status, service in the Armed Forces, atypical hereditary cellular or blood trait, and genetic information.
Highlighted below, however, are some of the thornier issues concerning who is protected under the LAD:
“Affectional or Sexual Orientation” versus “Gender Identity or Expression”
The first thing to realize, of course, is that the topic of LGBTQ rights can sometimes lead to heated political disagreements. But we’re not here to discuss the political climate. We’re here to discuss the law as it relates to management’s responsibilities and the rights of employees.
In 1992, the Legislature amended the LAD to add “affectional or sexual orientation” as a protected characteristic. This category is different from “gender identity or expression,” which in 2006 was added to the list of protected characteristics under the LAD. “‘Affectional or sexual orientation’ means “male or female heterosexuality, homosexuality or bisexuality by inclination, practice, identity or expression, having a history thereof or being perceived, presumed or identified by others as having such an orientation.” N.J.S.A. 10:5-5(hh) (emphasis added). Heterosexuality, homosexuality, and bisexuality are defined under the LAD. N.J.S.A. 10:5-5(ii)-(kk). Essentially, these terms relate to “affectional, emotional or physical attraction or behavior” towards others.
In comparison, the Act defines “gender identity or expression” as “having or being perceived as having a gender related identity or expression whether or not stereotypically associated with a person's assigned sex at birth." N.J.S.A. 10:5-5(rr). “Gender identity or expression” relates to a person’s own identity or expression. The definition includes transgender individuals and transsexual individuals, transvestites, and those who consider themselves to be androgynous.
Importantly, discrimination can be actionable solely based on how a person is perceived by others in the workplace. For example, more than twenty years ago, in Zalweski v. Overlook Hosp., 300 N.J. Super. 202 (Law Div. 1996), a trial court in New Jersey held that heterosexual male co-workers had committed sexual harassment of another heterosexual male when that harassment was based on gender stereotyping. The co-workers had harassed Mr. Zalweski because they thought he was a virgin. The Court’s analysis on same-sex discrimination and harassment based on gender stereotyping is just as relevant today.
Disabilities – Diagnosed and Perceived Ones Are Protected
The LAD has long protected individuals diagnosed with disabilities or those perceived to be disabled. Specifically, the law broadly protects an individual’s physical, mental, psychological or developmental disabilities. The LAD includes protections to persons with blood traits for numerous disorders and individuals with AIDS and HIV. Further, applicants or employees with disabilities or medical conditions who are otherwise qualified to perform the essential functions of a job are entitled to reasonable accommodations from their employers so long as it does not create an undue hardship on the company.
The question of whether obesity is a protected characteristic often is raised in lawsuits. Courts in New Jersey have consistently held that obesity is not a defined disability under the LAD. In April of this year, the New Jersey Appellate Division held, in Dickson v. Community Bus Lines, Inc., 458 N.J. Super. 522 (App. Div. 2019) that “obesity alone is not protected under the [New Jersey Law Against Discrimination] as a disability unless it has an underlying medical cause - a condition that plaintiff failed to meet in the present case.” Dickson, 458 N.J. at 532. In so ruling, the Dickson court relied on the New Jersey Supreme Court’s pronouncement over twenty years ago in Viscik v. Fowler Equip. Co., 173 N.J. 1, 17 (2002), that obesity alone is not considered a disability under the LAD. In Viscik the Supreme Court found that the plaintiff, who was morbidly obese, was disabled under the LAD. She presented evidence that her morbid obesity caused her to suffer “from disease or pathology as a result of her obesity,” that “her obesity-based arthritis, heart condition and obstructive lung disease are clearly "physical infirmities," and that these “physical infirmities” were "caused by bodily injury, birth defect or illness." The Dickson case is one to watch as obesity is often associated with an “underlying medical cause.” If an employee, like the plaintiff in Viscik, can establish that his or her obesity is tied to an underlying medical cause, the employee may attempt to use this language from the Viscik and Dickson cases as supportive of a disability claim. (One side note: Whether obesity is a protected characteristic or not is irrelevant to good management practices. Insults or jokes about personal appearance are never a good idea in or outside of the workplace.)
Age – Clearly Youth Is Not Wasted on The Young
The LAD protects individuals between the ages of 18 and 70. In other words, not only must an employer not discriminate against a person because he or she is old, but an employer cannot discriminate against an individual because he or she seems too young to adequately perform a particular job. In Bergen Commercial Bank v. Sisler, 157 N.J. 188 (1999), the plaintiff was a 23- year-old former bank vice president who sued his former employer for discriminating against him because he was too young. The New Jersey Supreme Court held that the LAD’s prohibition against age discrimination is not limited to the protection of older workers and is sufficiently broad to encompass a person’s age discrimination claim based on youth. In this way, the LAD differs in this way from the Federal Age Discrimination in Employment Act which protects individuals who are 40 or older. Of course, under the LAD, there are exceptions for certain jobs, such as law enforcement officers, where age is a bona fide occupational qualification.
Marital Status – It’s Nobody’s Business
Marital status is also protected under the LAD in that a person cannot be treated differently because the person is either single, married, separated, divorced or widowed – or because the person has merely announced that he or she is filing for divorce. In Robert Smith v. Millville Rescue Squad, 225 N.J. 373 (2016), the New Jersey Supreme Court held that marital status is “more than the state of being single or married….” Rather, the LAD also “prevents employers from resorting to invidious stereotypes to justify termination of the employment of a never-married employee, an engaged employee, a separated employee, an employee involved in divorce litigation, or a recently widowed employee.” 225 N.J. at 391. The LAD also protects same-sex marriages. This protection, however, does not mean, for example, that an employee going through a divorce cannot be disciplined for failing to adequately perform his or her job duties. Rather, the basis for discipline cannot be the divorce itself, which would be discriminatory.
- Whether you're an employer or an employee, treat everyone as you’d like to be treated.
- If you’re unsure about whether someone's personal characteristics are protected under the LAD, assume they are.
- I’m a movie buff. As Atticus Finch (an outstanding lawyer) from “To Kill A Mockingbird,” once wisely said, “You never really understand a person until you consider things from his point of view... Until you climb inside of his skin and walk around in it.” I’ve seen many legal problems that resulted from thoughtless or careless remarks. If you’re an employer, make sure your managers are aware of Atticus’s sound advice when it comes to creating a safe and accepting environment.