Sexual orientation discrimination in the workplace is a pervasive and real problem. While laws and policies exist to prevent this unjust practice, they simply are not widespread or strong enough to guarantee that all employees will not be treated unfairly because of their sexual orientation or gender identity.
Sexual orientation should not play a role in any kind of employment based decision making. Discrimination is unlawful when it is based on an employee’s actual or perceived sexual orientation. In the state of California, an employer cannot use a job applicant or employee’s actual or perceived sexual orientation as a reason to refuse to hire, promote, or terminate them. Such actions are against the law.
Interestingly, there are no specific federal laws providing protections against sexual orientation discrimination in the workplace. However, according to California’s Fair Employment and Housing Act (FEHA), it is unlawful to discriminate against any employee based on their sexual orientation or gender identity.
There are federal laws in place intended to protect people from workplace discrimination based on their sex, race, religion, national origin, religion, disability, and age. However, there is no such federal law specifically prohibiting discrimination based on someone’s sexual orientation on behalf of private employers. On the other hand, protections do extend to sexual orientation discrimination, but only for federal government workers.
However, because of how pervasive sexual orientation discrimination has been in recent times, there has been a push for Title VII’s prohibition against “sex” discrimination to also include sexual orientation discrimination.
Responsible for enforcing the federal government’s anti-discrimination laws, the Equal Employment Opportunity Commission (EEOC) has taken the legal stance that sexual orientation discrimination is unlawful under Title VII.
Fortunately, there are clear cut and far reaching protections offered in the state of California. The Fair Employment and Housing Act (FEHA) exists to prohibit all forms of discrimination against any individual simply because of their sexual orientation. This includes heterosexuality, homosexuality, and bisexuality.
Further, (FEHA) extends protections to prohibit discrimination that is based on an employee’s gender related appearance, gender expression, or gender related behavior. These protections apply whether or not an individual’s behavior is outside the mainstream or is associated with an individual’s assigned sex at birth.
In summary, sexual orientation discrimination can best be defined as: being treated unfairly or in a way that is different from the way other employees are treated explicitly because of an employee’s sexual preference.
Examples of Sexual Orientation Discrimination
Instances of sexual orientation discrimination can start off in a seemingly innocent fashion. Let’s consider an example. Say that an employer asks an employee about their relationship status, which is a delicate question to ask in the first place.
When the employer learns that the employee is married or is involved with a same sex partner, the employer then makes a comment about same sex marriage that is meant to be “humorous”, but which is actually offensive to the employee. Such jokes and comments can be hurtful, and they can certainly prove an employer is biased against people of a certain sexual orientation.
Another example is of an employer who uses an employee’s sexual orientation as a way of teasing or alienating them. Regardless of an employee’s qualifications and experience, an employer may choose to use a person’s sexual orientation in order to cast a doubt about their capacity to do their job, which is unlawful.
Discrimination based on someone’s sexual orientation may be expressed under a “playful” or “humorous” tone, but it can have a negative impact on an employee’s ability to perform his or her job related tasks, as well as making an employee feel unsafe while in the workplace.
While some employers may disguise their harassment as nothing more than workplace banter, bringing up an employee’s sexual orientation without their approval can create an inference of discrimination. If it is difficult to work at your office because others are teasing or harassing you for your sexuality, you may have grounds for a sexual orientation discrimination claim.
You should document your case and be as diligent as possible. Gather as much evidence as you can, such as documents, emails, text messages, or voicemails which show that you were discriminated against because of your sexual orientation.
In general, there is a process that must be followed and speaking with your employer is the first step. If speaking to your employer doesn’t resolve the issue, your next step is to file a charge with the California Department of Fair Employment and Housing. Once they have completed their investigation, you will typically receive a right to sue letter. At this point, you are free to pursue a legal claim in court.
If you have made up your mind to take action, it is important to work with an attorney that specializes in cases like yours. The sexual orientation discrimination lawyers at West Coast Employment Lawyers have extensive experience handling sexual orientation discrimination cases. We will work tirelessly to gather the facts, find and interview eyewitnesses, hire experts, and fight for your rights.
We work on a contingency basis, which means we only get attorney’s fees if we are able to recover for you. Our legal team is available 24/7 and will take care of your case from start to finish. For a free no-obligation consultation with a sexual orientation discrimination attorney in California, contact our office at 1-800-247-9235.
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