Perceived Sexual Orientation Discrimination
Even people who are not actually gay, lesbian, bisexual or transgender are protected if they are perceived to be or portrayed to be a member of a sexual minority. Sometimes, the discrimination is motivated by an incorrect assumption on the part of the discriminator that his or her target actually is an LGBT person. Even if the person turns out not to be LGBT, however, the person is protected just as if he or she is. The New Jersey Law Against Discrimination prohibits this type of discrimination. The law wouldn’t’ be very effective, indeed, if it permitted this type of discrimination simply on the basis that the discriminator was mistaken in asserting a bias.
Sometimes perceived sexual orientation discrimination can masquerade as other things. Perhaps a man acts in an effeminate manner or wears androgynous clothing in the workplace. Perhaps he is not assertive in the “traditional” way that his employer assumes men will be, and doesn’t act “mannish” or “masculine,” according to his employer’s subjective ideas about how the genders should behave, act, look, dress or speak. As a result of this behavior, even though the employee isn’t actually LGBT, the employer might, from a mistaken assumption that the employee is a sexual minority, discriminate against that employee in the terms and conditions of employment.
The Law Against Discrimination prohibits adverse job actions such as termination, demotion, failure to promote on the basis of perceived or affectional sexual orientation.
Sometimes we call perceived sexual orientation by other names, depending on what sort of conduct the person is exposed to. If a person is mistreated or singled out for not “behaving properly” for his or her gender, or adopts behaviors associated with the opposite gender, we can sometimes argue that the individual is the subject of gender stereotype or gender identity or expression discrimination, which is closely related to sexual orientation discrimination and perceived or affectional sexual orientation discrimination.
Even when the discriminator is mistaken, this type of bias cannot be allowed. The law firm of Costello & Mains, LLC, and its attorneys have spent the majority of their legal careers fighting all types of discrimination, including perceived affectional sexual orientation discrimination. It’s okay to be whoever you are, and your employer has to be okay with it too, whether they like it or not.
Kevin Costello and Deborah Mains have been at the forefront of advocacy in the State of New Jersey for LGBT employees and protecting their employment and civil rights under the New Jersey Law Against Discrimination.