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How You Can Win in (Federal or New Jersey) Court for Harm Suffered at Work Because You Were Seen as Too Effeminate or Too Masculine

Nearly everyone has an idea of what they think sex discrimination looks like. Maybe it’s an employer that refuses to hire a male applicant because he’s a man, or an employer that refuses to promote a female employee because she’s a woman. Those are clear-cut examples, but sex discrimination goes further than just that. One area of illegal sex discrimination is when you are punished at work for failing to conform to a certain stereotype generally affiliated with your gender. When that happens, you should contact a knowledgeable New Jersey sex discrimination attorney and explore your legal options.

One example of this kind of discrimination was on display in a federal lawsuit filed by an inspector at a food company’s facility. Allegedly, the employee’s supervisors “constantly” called him a wide array of homophobic epithets. One supervisor derided the employee’s car as “something a [gay slur] would drive.” The inspector, despite his allegedly enduring an onslaught of homophobic harassment, actually was heterosexual.

The judge in the inspector’s case said he could go forward with his pursuit of his employer. Federal law, as it currently exists in the Third Circuit (which includes Pennsylvania, New Jersey and Delaware) doesn’t recognize discrimination claims based on a worker’s sexual orientation or perceived sexual orientation, but does recognize as illegal discrimination based on ‘gender stereotyping,’ which means punishing a male worker for being insufficiently masculine or a female worker for not being feminine enough. The worker need not be gay or lesbian; in fact, the worker in the landmark U.S. Supreme Court case on gender stereotyping was a heterosexual woman.

While a worker who is the target of gender stereotyping discrimination need not necessarily be gay, lesbian or trans, gender stereotyping discrimination is something that often goes along with LGBT-related discrimination and, as such, can provide substantial legal aid to LGBT people who seek to pursue their cases in federal court. A certain percentage of gay and lesbian workers may have hairstyles, clothes and/or mannerisms that are stereotypically associated with the opposite gender, and may suffer harassment or discrimination because of their outward appearance.

Thus, a gay worker couldn’t win a federal claim in the Third Circuit arguing that he suffered employment harm because he was gay, but he might be able to take those same facts and win a sex discrimination case based around the idea that the discrimination or harassment he suffered was because he was seen as too effeminate. Similarly, a lesbian worker could not win a federal claim in the Third Circuit that her employer discriminated against her because she was lesbian, but could potentially win a federal discrimination case on those same facts by arguing that she was harmed because she was seen as not feminine enough.

In the inspector’s case, he alleged that he suffered discrimination because of his clothing, hairstyle and smell, which triggered an assumption that he was gay. That was enough, according to the federal magistrate judge, to give the inspector a viable sex discrimination case based on gender stereotyping.

New Jersey law offers even greater protection than federal law

Here in New Jersey, a worker who suffered the sort of harm that this inspector alleged would likely have an even stronger case. Unlike the federal law, New Jersey’s Law Against Discrimination explicitly covers, and prohibits, these types of things… and more. The law says that discrimination based on a worker’s sexual orientation – whether that’s homosexual, bisexual or heterosexual – is illegal. The law also prohibits discrimination based on a worker’s gender identity.

What’s more, New Jersey law says that, if you suffer discrimination based on what someone perceives your sexual orientation or gender identity to be – that’s illegal discrimination, too. So, even if you’re heterosexual, if you are targeted at work because someone else perceives you to be gay (as was the case with the inspector in Pennsylvania,) then that generally would be a violation of the Law Against Discrimination in New Jersey.

No one should suffer in the workplace because others believe that he is not “manly enough” or she is not sufficiently “ladylike.” Workplace success or failure should be based on the quality of your work, not the way you walk. If you’ve suffered this kind of impermissible discrimination, the experienced New Jersey sex discrimination attorneys at Phillips & Associates are here to help. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation to discuss how we can assist you.

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