Job Discrimination Based on Sexual Orientation & Gender Identity is Illegal
Can your employer legally discriminate against you based on your sexual orientation and/or gender identity?
The answer is NO. Absolutely, positively, unequivocally NO. As they say in Brooklyn, “fuggetaboutit.”
Point of fact: both Title VII of the federal Civil Rights Act and the California Fair Employment and Housing Act (FEHA) make it illegal for an employer to fire, demote, fail to hire, fail to promote, harass, or otherwise discriminate against you because of your sexual orientation, gender identity, or gender expression. To be clear, there are two distinctly separate areas of discrimination that can occur and are both equally protected by the law: discrimination based on sexual orientation and discrimination grounded in someone's gender identity.
Historic Supreme Court Decision
Bostock v. Clayton County, Georgia was a sweeping and landmark decision handed down by SCOTUS on June 15, 2020. The Court ruled that employment discrimination on the basis of sexual orientation or gender identity is expressly prohibited under federal civil rights law.
Justice Neil Gorsuch wrote in the majority opinion, “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” Conservative Justice Gorsuch was joined by Chief Justice John Roberts as well as the Court's four liberal justices (at the time Stephen Breyer, Elena Kagan, Ruth Bader Ginsburg, and Sonia Sotomayor) in deciding this significant case.
The news was hailed by many as an important victory. ACLU attorney Chase Strangio, who is transgender and represented the plaintiff, said, “All the trans people and LGBTQ people that lived and died so that we could have this win didn't get to see it, but we are here and we will keep fighting.” The decision was the most important civil rights case in the U.S. since the Supreme Court decision in 2015 that legalized same-sex marriage.
Regarding the Bostock case, it's important to note that SCOTUS did not create a separate or new category for sexual orientation, but rather simply defined the term “sex” in Title VII's very plain language, stating that it's unlawful for an employer to discriminate against any individual “because of such individual's race, color, religion, sex, or national origin.”
California Law Ahead of the Curve
The historic Bostock case now joins and bolsters California's Fair Employment and Housing Act (FEHA),” which has been in force since 1959, and makes it illegal for an employer to fire, fail to hire, or discriminate against you in any way because of your sexual orientation. In fact, California law bans discrimination based on actual or perceived sexual orientation, gender identity, or gender expression. This means you're protected even if your employer is mistaken about your identity.
As well, FEHA prohibits “harassment” based on your sexual orientation and/or gender identity.
What's defined as “harassment?” It's a discriminatory conduct committed by a co-worker and/or supervisor that subjects you to offensive, hostile, or intimidating behavior because of your sexual orientation and/or gender identity.
Here are some examples of sexual harassment; they include but are not limited to—
- you're forced to experience insulting and/or abusive remarks about your mannerisms or sexual activity
- offensive sexual jokes freely circle your environment, including images, and/or emails, texts, and all forms of communication
- you experience requests or demands for sexual favors or pressure for dates
- you experience unwanted touching or grabbing, gestures, or leering
Take into account, all of this behavior is ugly, it's not normal, and it's illegal.
FEHA Goes Further
In general in California, workers enjoy more protection than is the case with federal law or the laws in other states. That's why it's important to note that California law also allows for employees to fight for the imposition of punitive damages (damages exceeding simple compensation) to punish the defendant (employer) for their discriminatory behavior. Keep in mind, it is still the employee's responsibility to prove that the employer's actions recklessly ignored the worker's rights and therefore the law.
A More Detailed Look at Discrimination
In the State of California, workers have additional protections. Wrongful conduct by an employer can open the door for two possible claims of discrimination: (1) perceived sexual orientation discrimination; and (2) gender expression/identity discrimination.
Here are some examples of discrimination as defined by California state law; they include but are not limited to—
- you were not hired or promoted because the company and/or your supervisor determined that you're gay, lesbian, bisexual, straight, transgender—or because of your gender identity/expression
- you were disciplined or fired because the company and/or your supervisor determined that you're gay, lesbian, bisexual, straight, transgender—or because of your gender identity/expression
- any other adverse or derogatory employment actions by your company and/or supervisor that may qualify as “different treatment” because you're gay, lesbian, bisexual, straight, transgender, or other gender identity—or because of your gender identity/expression
Remember, discrimination comes in many forms and could be perpetrated by anybody in the organization: a few co-workers, a supervisor, or even the owner or CEO of the company.
You're Not Alone
The most recent study by the National LGBTQ Workers Center estimates that 4.5% of the U.S. population identifies as lesbian, gay, bisexual, or transgender. This totals approximately 11+ million Americans. 88% in this group are employed—and study after study, like this one from the Center for American Progress, continue to find significant workplace discrimination, as well as discrimination across all aspects of life in the LGBTQ community.
If you believe you've experienced—or you are experiencing—discrimination and/or harassment on your job based on your sexual orientation, take action today. Even if you're not sure, have questions, or need advice, contact us—we're here for you, the experts at Lawyers for Employee & Consumer Rights. The consultation is free of charge.
Know Your Rights | Knowledge is Power
Because California is an “at-will” employment state (employers are free to terminate employees at any time) employees think that they have no rights. Nothing could be further from the truth. Learn more about your employee rights. Contact us today.
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