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Recent Legislative Amendments to the LAD & FLA
by J. Frank Vespa-Papaleo, Director
 
  In 1945, the New Jersey Legislature enacted the nation’s first state-wide civil rights enforcement statute, the New Jersey Law Against Discrimination (LAD). N.J.S.A. 10:5-1, et seq. For decades the LAD prohibited discrimination in employment, housing, and places of public accommodation on the basis of race, national origin, sex, age, disability, creed, and other “protected categories.” However, it was not until 1991, due to legislation drafted by the late D. Bennett Mazur, that the New Jersey Legislature finally amended the LAD to prohibit discrimination on the basis of sexual orientation. N.J.S.A. 10:5-3.  
  Recently, the LAD was amended to prohibit discrimination in New Jersey on the basis of domestic partnership status. N.J.S.A. 26:8A-1, et seq. Moreover, only months ago, Governor Jon S. Corzine signed into law amendments to the LAD and the New Jersey Family Leave Act (FLA), N.J.S.A. 34:11B-1, et seq., protecting gay and lesbian individuals on the basis of “civil union status,” which took effect February 19th. N.J.S.A. 37:1-28, et seq. As a result of different legislation signed by the Governor, beginning June 17, 2007, the LAD will also provide protections on the basis of “gender identity or expression.” N.J.S.A. 10:5-5(qq). Consequently, as of June 18, 2007, New Jersey state law will be one of the most progressive in the nation for gay, lesbian, bisexual, and transgender (GLBT) people, by prohibiting discrimination in employment, housing and public accommodations on the basis of sexual orientation, gender identity or expression, and civil union or domestic partnership status.  
  This article provides an overview of the protections in the LAD and the FLA for GLBT people, or sexual minorities. Since these new laws provide some of the most cutting-edge civil rights protections in decades, it is critical that employers and employees become familiar with their provisions so as to reduce incidents of unlawful discrimination.  
  Whom Does the LAD Protect?  
  Under the LAD all sexual orientations are protected from discrimination—heterosexual, homosexual, and bisexual, although generally most cases alleging discrimination on the basis of sexual orientation occur against homosexual or bisexual individuals. Additionally, New Jersey law now prohibits discrimination on the basis of gender identity or expression, in addition to prohibiting discrimination on account of a person’s status as a member of a registered domestic partnership or civil union. Consequently, the LAD grants extensive protections to sexual minorities and persons of the GLBT community.  
  Interestingly, New Jersey law also protects individuals whether they are actually a member of a sexual minority or are perceived to be gay, lesbian, bisexual or transgender.  
  The LAD makes it unlawful to discriminate in employment regardless of how many individuals the organization employs, so long as the employee works in New Jersey. Additionally, the LAD protects from unlawful discrimination people who conduct work for the employer—whether paid or volunteer. For example, a hospital cannot discriminate against a hospital volunteer on the basis of that person’s real or perceived sexual orientation, even though the person is an unpaid volunteer. The law also prohibits labor unions from discriminating on the basis of a person’s sexual orientation, gender identity or expression, or civil union or domestic partnership status.  
  What Forms of Discrimination Are Covered Under New Jersey Law?  
  New Jersey’s LAD protects sexual minorities from discrimination in housing, places of public accommodation, contracts, and employment.  
  In the area of employment, all terms and conditions of employment are covered under the LAD. That means that an employer cannot discriminate on the basis of sexual orientation, gender identity or expression, or civil union or domestic partnership status in hiring, promotions, retirement, salary, wages, privileges of employment, etc.  
  However, it is unclear the extent to which employers must provide insurance to civil union spouses. Since there are some federal laws (1 U.S.C. sec. 7 and 28 U.S.C. sec. 1738) that question the recognition of same-sex civil relationships (whether called “marriage,” “domestic partnership” or “civil union”), it is recommended that civil union spouses consult with private counsel about their potential rights to insurance benefits. This is an untested area of the law in New Jersey However, in the interest of compliance with both the language and spirit of the Civil Union Act and the Supreme Court’s decision in Lewis v. Harris, 188 N.J. 415 (2006), it is recommended that employers provide insurance benefits to partners in a civil union in the same way they provide insurance to employees who are in opposite sex marriages. In fact, many Fortune 500 companies already have policies to provide such benefits to employees in committed same-sex relationships.  
  Additionally, it is illegal to subject an employee to harassment on the basis of the person’s sexual orientation, gender identity or expression, or civil union or domestic partnership status. This includes a prohibition against the existence of a “hostile work environment” by co-workers. For example, unwelcome homophobic or transphobic comments made by fellow employees against a GLBT employee could make an employr liable for “hostile work environment” discrimination if the comments or conduct would not have been made but for the employee’s protected class (as a member of a sexual minority—real or perceived), and the conduct was severe or pervasive enough that a reasonable person would believe that the work conditions were altered and the environment was hostile or abusive.  
  Employers will be held liable for permitting a hostile work environment to exist in a workplace, and they must take reasonable steps to stop any such harassment as soon as they are on notice, which can include counseling, submission to broad employee policies, and training. Sometimes this means removing—and sometimes terminating—the harasser from the work environment. A victim of discriminatory harassment should generally not be unilaterally removed from the workplace. Rather, the harasser should be removed from that work environment. Moreover, individuals who complain about such harassment—victims and co-workers—cannot be retaliated against for complaining in good faith.  
  Additionally, the FLA, which permits employees to take time off for taking care of a sick family member, has been amended by the Civil Union Act to extend protections to civil union spouses, by permitting an employee to take time under the FLA to care for a sick civil union spouse.  
  New Jersey’s Law Against Discrimination also prohibits discrimination in housing on the basis of sexual orientation, gender identity or expression, or civil union or domestic partnership status. This includes discrimination in the rental or purchase of real estate. This means that a landlord, real estate agent, rental agent or seller may not refuse to make available, show, list, sell a house, apartment, trailer home, or other dwelling or commercial real estate because of sexual orientation, or other protected category. Additionally, in the area of housing discrimination, it is illegal to deny someone access to real property on the basis of familial status, meaning that a landlord cannot refuse to rent to a person or family with children, unless it is legally considered housing for persons who are 55 and older. The Division’s Web site, www.NJCivilRights.org, includes a very helpful memorandum, in English and Spanish, from the Attorney General about illegal discrimination in housing., It is also illegal to discriminate in places of public accommodation. These are places generally open to the public, such as stores, restaurants, hotels, public schools, movie theaters, camps, professional offices such as doctors and attorneys, and other establishments. The LAD prohibits those who operate places of public accommodation from refusing service or differential service to persons on the basis of their sexual orientation, gender identity or expression, or civil union or domestic partnership status.  
  It is very important to note that the New Jersey Supreme Court recently made clear that the operators of places of public accommodation also must protect persons from a hostile environment caused by unlawful sexual orientation discrimination. In the case of L.W. v. Toms River Regional Schools, 189 N.J. 381 (2007), the Supreme Court ruled that a school district could be held liable for not adequately responding to student-on-student sexual harassment against a student perceived to be gay. Therefore, schools—which are places of public accommodation—must reasonably prevent and eliminate “hostile educational environments.” This cutting-edge decision is the first in the nation in which a state anti-discrimination law has been successfully used to hold a school district liable for bias-based bullying of a student perceived to be gay.  
  What Should Employers Do to Ensure Compliance with the new provisions of the FLA and LAD with regard to the civil rights of GLBT employees?  
  Employers should take 5 immediate steps:  
  Review all policies and practices—including the company’s general anti-discrimination policy--and revise them to specifically include protections on the basis of sexual orientation, gender identity or expression, civil union status, and domestic partnership status.
Distribute revised policies to all employees, managers, and third parties with whom the employer contracts.
Distribute and post the new anti-discrimination posters published by the NJ Division on Civil Rights; specifically, the FLA, Employment Discrimination, and Public Accommodation Discrimination posters; the posters can be downloaded for free at www.NJCivilRights.org. The DCR does conduct inspections to ensure compliance with posting regulations.
 
  Conduct training to all staff—including specialized training to management—on the LAD and the Family Leave Act, to include the new provisions that provide protections to sexual minorities; be sure your harassment training is amended to include harassment against sexual minorities, and be sure that management follows these policies.
Engage in employer best practices by providing insurance coverage to same-sex partners to a civil union; the State of New Jersey and many top private employers provide such insurance as a way to promote diversity, recruit quality employees, and retain top performers. Moreover, increasingly, clients, suppliers and contractors demand diversity best practices by the professional services firms with whom they contract, including law firms.
 
  What Do I Do If I Know A Sexual Minority Who is a Victim of Illegal Discrimination in New Jersey?  
  If you, or someone you know, is a victim of unlawful employment, housing, or public accommodation discrimination on account of your real or perceived sexual orientation, gender identity or expression, or civil union or domestic partnership status, and the discrimination occurred in New Jersey in the last 180 days, you should contact the New Jersey Division on Civil Rights. Our toll-free hotline is 1-800-830-0647. You can visit any one of our 5 full-time offices located in Paterson, Newark, Trenton, Atlantic City, and Camden and meet with an intake investigator. For the contact information to each office see our website at www.NJCivilRights.org.  
  Our services are free. If we file a complaint for you, we will investigate that complaint. If we find evidence of discrimination, we can prosecute the case. Alternatively, we have a very successful mediation program staffed by full-time, professional, staff mediators.  
  You can also initiate a private lawsuit in Superior Court within two (2) years of the discriminatory act. But you must do that on your own or obtain private counsel.  
  Although there are no federal laws that specifically protect sexual minorities from discrimination in employment or housing, in some circumstances you might be able to file a claim with the United States Equal Employment Opportunity Commission (see www.eeoc.gov) if you have been a victim of adverse employment action due to sexual stereotyping (for example, a female employee “dresses like a man,” etc.). Additionally, there is currently legislation pending in Congress, called the Employment Non-Discrimination Act, that would outlaw employment discrimination on the basis of “gender identity” and “sexual orientation.”  
  At the NJ Division on Civil Rights, we take discrimination very seriously. When we find discrimination, we may seek a variety of remedies, depending on the different circumstances of each case. Remedies range from monetary awards (back pay, pain and humiliation, attorney fees, etc.) to injunctive relief (reinstatement, new policies, training, etc.). The State also may seek penalties in the amount of up to $10,000 for a first violation, $25,000 for a second violation, and $50,000 for a third offense.  
  Clearly, discrimination is not only unfair and illegal, it is very expensive. That is why we encourage you, your friends, and your clients to learn about your rights, and responsibilities under the LAD and FLA. You can do this by accessing our website at www.NJCivilRights.org, where you will find helpful free publications, from our Fact Sheet on Sexual Orientation Discrimination and the Family Leave Act to the new Anti-Discrimination Posters which have been updated to include new protections for sexual minorities. Additionally, each week we are adding more and more free information on our website for employers and employees to use.  
  As we all know, the greatest power is the power of knowledge. I hope this provided some useful information. Should you have any questions about the Division do not hesitate to contact me or my office at any time; we are here for you. Whether you represent employees or employers, we are in your corner.  
     
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