What is LGBTQ Discrimination in the Workplace?

While sexual harassment might seem like a straightforward scenario — particularly if you are the victim — that isn’t always the case in court. Sexual harassment can be broken into two major categories: quid pro quo harassment and hostile work environment. The latter is sometimes harder to prove in court.

As we’ve previously discussed in the past, quid pro quo sexual harassment involves someone demanding sexual favors of someone else in exchange for something. That something could be a raise, promotion or job offer, but it could also be silence about a certain thing that might interfere with your career.

Hostile work environment harassment occurs when behaviors — physical, spoken or otherwise — are sexual in nature, are overt and unwanted and are causing distress or interference with work. This might seem like a simple definition, but when you begin applying this definition to the facts of a case, it can become complex. This is especially true since case law isn’t consistent on these matters — courts have handed down very different decisions in cases with seemingly similar facts.

For example, someone might feel like they are faced with a hostile work environment because someone else posted a pornographic image on a cubicle. One court might agree that this is harassment while another decides that one image isn’t enough to create a hostile working environment.

Because of these discrepancies, you might want to work with a legal professional to make your case. An experienced lawyer can help you understand what evidence might be required and what your options for remediation might be.

Source: FindLaw, “ Roughly one in five LGBTQ individuals in the U.S. reports having been discriminated against for their sexuality or gender identity when applying for a job, and nearly the same amount report being passed over for a promotion due to their sexuality or gender identity or have received unequal pay as a result. Nearly 60 percent of LGBTQ individuals participating in a study noted that they were less likely to be afforded job opportunities where they live due to their LGBTQ status.

LGBTQ discrimination is a serious problem. It is also illegal, thanks to state and federal laws that prohibit employers from using an individual’s sexual preference or gender identity as a reason to fire, demote, or avoid hiring a qualified applicant. Read on for more information about these laws and how they impact you.

A History of Discrimination

There are approximately 8.1 million LGBTQ workers over the age of 16 in the U.S. Around half of those workers still live in states where there are currently no statutory protections against workplace discrimination involving sexual preference or gender identity.

In spite of a Constitution that asserts equal rights and services for all U.S. citizens, those of the LGBTQ community are no strangers to discrimination, even from U.S. presidents. For example, President Dwight D. Eisenhower signed an executive order in 1953 that prevented “sexual perversion” in federal workplaces and was used by the military to prevent LGBTQ individuals from serving in the military for the next 40 years.

With the advent of President Bill Clinton’s “Don’t Ask, Don’t Tell” policy in 1993, federal employers were prevented from asking the sexual preference of an employee. However, the policy still required the LGBTQ employee to keep his or her gender preference or sexual identity a secret. This policy remained in place until 2010, when it was officially repealed and LGBTQ individuals were permitted to be open about their sexuality while serving.

Federal and State Protections for the LGBTQ Community

For the estimated 1.94 million LGBTQ workers in California, the California Fair Employment and Housing Act along with Title VII of the federal Civil Rights Act make it illegal in this state for an employer to fire, demote, fail to hire or promote, harass or otherwise discriminate against you in the workplace due to your sexual preference, gender identity, and/or gender expression. Some of the protections you are afforded because these laws are in place include:

• The protection against harassment by your employer or coworkers that is based on your sexual preference, gender identity, or gender expression. This includes protecting you against a work environment that is hostile, offensive, or intimidating to the point that it interferes with your ability to work.
• The right to identify and express your gender at work as you wish. California’s law requires your employer to respect your right to express your gender and/or gender identity as you choose, including using your requested pronouns and name, regardless of whether you have legally changed your name or pronouns.
• You are granted the right to come out at work, if you choose. You are also granted the right to transition at work, and your employer — once made aware by you of this transition — is prohibited from mistreating you because of that transition.
• You have the right to use the restroom at work that corresponds with your gender identity and your employer is not allowed to dictate the restroom that you use. If the restrooms in your workplace are single stall, they must be designated as “unisex” or gender neutral.
• Your employer cannot ask about your sexual preference or gender identity during an employment interview and, if health insurance is provided through your employment, you cannot be prevented from seeking or obtaining gender-affirming care.

There are a number of other provisions included in these laws, such as the prohibition of employers from preventing a LGBTQ employee from seeking health insurance coverage for his or her same-sex spouse or domestic partner, and preventing employers from retaliating against an employee for filing a complaint about mistreatment in the workplace.

In California, if you file a complaint against an employer for LGBTQ discrimination with the state’s Department of Fair Employment and Housing within three years of when the alleged discrimination took place and it is discovered you were, in fact, discriminated against, you can be entitled to lost earnings, both past and future; reinstatement at your job; promotion; payment of out-of-pocket expenses; policy changes; training; reasonable accommodations; compensation for emotional distress that was suffered as a result of the discrimination; punitive damages; and the fees associated with hiring an attorney to represent your case. Those who wish to file their own employment discrimination lawsuit rather than using the Department of Fair Employment and Housing investigations process are able to obtain a right-to-sue notice from the department in order to engage in that legal process.

Exceptions to the Law

There are very few exceptions to the state and federal laws prohibiting discrimination based on gender identity, gender expression, or sexual preference in the workplace. Those exceptions include:

• Certain employees of religious institutions such as churches or mosques.
• Employees of very small businesses. The state protections against discrimination apply only to employers with five or more employees and federal protections are applicable to employees of businesses who have at least 15 employees.

Asbill Law Group Can Help

Suffering discrimination in the workplace due to your gender identity, gender expression, or sexual preference is a frightening and frustrating experience. Let our experienced employment attorneys help you to understand the process of holding discriminatory employers accountable while retaining your right to equality in employment and the wages and benefits that you worked hard to earn. We will explore the option of a DFEH investigation as well as an independent lawsuit against your employer to determine the process that is right for you. Contact us online for more information or by calling 916-877-4227.>Sexual Harassment: What is it?,” accessed June 10, 2016