Perceived Sexual Orientation Harassment
Last week, one of my cases was featured in a Bergen Record article. My client, along with co-counsel, David Rostan, Esquire, alleges that he was a victim of sexual orientation or perceived sexual orientation hostile work environment which is in violation of the New Jersey Law Against Discrimination (“LAD”). Our client, Mr. John Pastore, a New Jersey Transit employee, claims in his lawsuit that his locker banged up with the lock bent, receiving phone calls in which he was called by gay slurs, being asked questions about what kind of sex and men he liked, being screamed at and mocked for the way he talked and being accused of harboring a sexual attraction to another male co-worker. Pastore also alleges one employee grabbed his buttocks and later grabbed the end of his belt when it was hanging down. The law protects against sexual orientation discrimination and covers gays and lesbians and those who are “perceived, presumed or identified by others” as gay.
It is been my experience that in different male dominated workplaces perceived gay can be commonplace. Co-workers or supervisors make fun of or pick on male individuals without necessarily believing that the person is gay, but do so anyway because they perceive that the stigma of being perceived homosexual would be more damaging to their victims. Corrections facilities are another male oriented environment where such offensive behavior has been alleged. Thankfully, a victim of this kind of abhorrent behavior does not have to bring their own sexual orientation “into play” in order to successfully litigate these claims under the LAD.
In Zalewski v. Overlook Hospital, 300 N.J. Super. 202 (App. Div. 1997), the Appellate Division Court stated that the LAD’s protection included the perception of a plaintiff’s sexual orientation as a basis for unlawful harassment. In that case, the plaintiff was harassed by male co-employees who were teasing him because they believed that he was a virgin. The male co-workers tormented the plaintiff by attacking his sexual orientation. The court found in favor of the plaintiff and found that the co-workers had committed perceived sexual orientation discrimination.
So if you know someone who is being picked on because he or she is being perceived or presumed to be less than someone’s definition of heterosexuality, then it does not matter whether or not they are gay, lesbian, bisexual or transgender. What matters is that the harassment that they are suffering is protected under the law and they should seek out an experienced employment law attorney to consult about the options that are available to them.