Discrimination in the workplace is nothing new, though when you first experience it, you may feel overwhelmed, sad, angry, and unsure of yourself. It can be something seemingly small, like being made to feel different in severe way, or something larger like threatening the future of your employment at the company. When you experience discrimination regarding your sexual orientation, this can often feel like a hostile attack on who you are at your core.
If you have experienced sexual orientation discrimination, know that you have ways to fight it. Whether through federal or state laws, employer anti-discriminatory policies, or other means, you may be able to seek justice.
At California Sexual Harassment Attorney, we can help you understand your legal rights around sexual orientation discrimination in the workplace in California. We have significant experience with workplace discrimination and sexual harassment, including sexual orientation discrimination, which includes both heterosexual and LGBTQ (lesbian, gay, bisexual, transsexual, and queer/questioning) employees.
The below information is intended to help you understand sexual orientation discrimination in the workplace and some paths towards justice. It is not intended as legal advice.
Definition of Sexual Orientation Discrimination
Sexual orientation refers to the sex or gender you are most frequently attracted to in a romantic or sexual way. Sexual orientation includes heterosexuality (attraction to the opposite sex), homosexuality (attraction to the same sex), bisexuality (attraction the both sexes), and pansexuality (attraction to sexes both inside and outside the binary of male and female).
Sexual orientation discrimination often refers to discrimination towards individuals who are not heterosexual, often summarized under the term LGBT or LGBTQ (lesbian, gay, bisexual, transsexual, queer/questioning). Still, this does not have to be true. If the discrimination primarily makes allusions to the subject’s sexuality, whether real or perceived, whether “straight” or other, it counts as discrimination.
Furthermore, while a common case may be a heterosexual person discriminating against an LGBTQ employee, the discrimination can also happen in reverse: an LGBTQ employee discriminating against a heterosexual employee.
Examples of discrimination regarding sexual orientation include:
- Tangible employment actions due to real, perceived, or assumed sexual orientation, such as:
- Garnishment of wages, benefits, and leaves
- Loss of promotion, position, or job (firing or termination) with the company
- Denial of access to resources normally available to employees, such as training and educational opportunities, workplace benefits, etc.
- Situations that create a hostile work environment, including:
- Inappropriate and/or unwelcome sexual propositions
- Sexually suggestive or explicit gestures
- Sexist slurs or jokes, especially when used repetitively and/or consistently
- Threats and bullying related to sexual orientation
An act of discrimination may start small but could lead to severe behavior including intentionally inflicting emotional or mental stress, physical assault or battery, defamation, and/or the invasion of your privacy.
Importantly, discrimination can occur around both real or perceived sexual orientation. If an employee believes another employee is a lesbian and discriminates against her accordingly, it is discrimination even if she is not a lesbian or is not out at work as a lesbian.
Federal and California Laws Regarding Sexual Orientation Discrimination
While several types of workplace discrimination are federally prohibited by Title VII in the Civil Rights Act of 1964, federal law does not explicitly prohibit workplace discrimination based on sexual orientation. This topic is much debated, with a case quickly ascending to the U.S. Supreme Court in 2017 after going through appeals. The ultimate ruling currently upholds that the Civil Rights Act does not extend to sexual orientation discrimination.
For those employed in the state, California law does make sexual orientation discrimination in the workplace illegal. The California Fair Employment and Housing Act (FEHA) extends its workplace discrimination laws to prohibit sexual orientation discrimination. The law means that individuals are protecting from illegal discrimination by employers based on several factors, including sexual orientation and gender identity.
FEHA defines discrimination as applying to any business practice, including advertising for employees and/or general employer marketing; the application process, including screening and interviews; employee growth, including hiring, transfer, promoting, firing, and terminating employees; working conditions such as compensation, benefits, etc.; membership in a union or employee organization; and opportunities for training.
By legally pursuing discrimination, this California state law can help situations of workplace discrimination by instituting the following:
- Back or front pay and out-of-pocket expenses
- Hiring and/or reinstatement of employee
- Promotions and other opportunities
- Employer policy changes
- Training and educational opportunities
- Emotional distress damages
- Punitive damages
- The fees and costs associated with legal and attorney fees
Importantly, whether federal, state, or local laws provide protection against sexual orientation discrimination, those discriminated against can always look to their employers. Companies usually have an anti-discriminatory code that can and often does include topics beyond the purvey of the law.
Protect Yourself in the Workplace
Even if the law doesn’t explicitly protect victims of sexual orientation discrimination, your company might. No matter your workplace situation, here are good ways to start protecting yourself from sexual orientation discrimination:
- Know your company’s policies. If you work for a private company, read through the employee handbook and other related material to know what their anti-discriminatory practices are. Do they have a formal grievance or complaint system? What steps does the company follow once a formal complaint is made? What is your contractual role as an employee? (You can do this as soon as your start working at your workplace, or often even when considering a job offer.)
- Check your union contract. If you are part of a labor organization or union, be sure to understand if and how that structure extends protection around sexual orientation discrimination.
- Understand your California state rights. The FEHA protects individuals from illegal sexual orientation discrimination in the workplace.
- Keep track of any positive feedback and reviews you receive from management and colleagues. This can include a range of items, from actual annual or semi-annual reviews, feedback from management or colleagues on specific work or projects, and even congratulatory emails. This information can be useful in the event of sexual orientation discrimination.
- Find an ally. An ally can be anyone you trust, whether they are an LGBTQ person or not, whether they are a colleague in your workplace or a friend elsewhere. Talking with someone can help provide insight, listen to your story, and even provide advice.
- Speak up. When discrimination occurs, sometimes the best way to address it is right there in the moment. Let the employer know that the behavior is unwelcome and inappropriate. In some situations, this may be enough to prevent further discrimination.
Once someone has begun discriminating against your based on your sexual orientation, here are further actionable steps to take:
- Record every instance of discrimination or conduct that could be deemed discriminatory. This can include a simple document or spreadsheet that lists the dates, times, locations, persons involved, and description of what occurred. This information should be stored away from the workplace, perhaps on your phone or at home.
- Collect any evidence of the discrimination. This can include any physical objects as well as electronic communication such as emails, texts, voicemails, instant messages (Skype, Slack, etc.), photos, etc., from or relating to the person conducting the discrimination. When possible, compile a list of witnesses – for instance, if a third party was standing next to you when the discrimination occurred. They could be helpful is providing further verification of your reports. You should have access to this information beyond the workplace – so consider keeping digital versions in your own, private email or other accounts, or printing out copies of digital communication.
- Tell your employer. Sharing with your employer that you feel you are experiencing discrimination or harassment related to your sexual orientation makes them aware that you are taking the matter seriously. You can let them know you are considering formal or legal action. Remember that your employer must uphold the law, but you are responsible for the protection of your personal rights.
- Make a formal complaint. Whether through your company’s in-house grievance or complaint procedure or via a labor union or organization, filing a complaint is the first step to fighting discrimination.
- Begin an investigation under California state law. The FEHA protects individuals from illegal sexual orientation discrimination in the workplace. Individuals may file a complaint of discrimination with the Department of Fair Employment and Housing (DFEH) online. This begins a formal investigation, starting with determining whether the DFEH can prove the allegations, which is why recording incidents and proof of discrimination is vital. The investigation can include both on-site and telephone interviews, and the DFEH has authority to require interviews under oath, issue formal subpoenas, and seek non-permanent restraining orders. The process can be lengthy, but the DFEH aims to complete all investigations within 1 year of receiving the complaint.
- Talk to a labor attorney. This may seem like an unnecessary step, but the best way to prevent further discrimination is to understand fully all of your rights. Even if your company or labor union doesn’t provide a formal complaint process, a lawyer may be able to provide additional legal options for your situation. A legal team who further specializes in sexual orientation and LGBTQ rights can be especially helpful as this legal field is currently in flux.
Taking Action Against Sexual Orientation Discrimination
Discrimination of any kind takes a mental and emotional toll on its victims. Sometimes the toll can be so severe that it leads to physical and even psychological impacts on those subject to discrimination.
Many times, people who are the subject of sexual orientation discrimination want to hide it. They may feel ashamed of themselves, unsure what to do, or scared to speak up. They may fear being “outed” in an environment that is unfriendly or even hostile.
Discrimination is often about power, and someone who promotes or displays discrimination towards others is often seeking an authority or upper-hand of power. In the workplace, that power can extend to actual, tangible threats to the victim’s employment – loss of a job opportunity, loss of recognition, or even loss of job.
For these reasons and many others, victims of sexual orientation discrimination may opt not to report or otherwise formally complain against a colleague or employer who discriminates.
Those who opt or are able to fight sexual orientation discrimination can take solace in finding justice.
Benefits to An Open Workplace
Pursuing justice against workplace discrimination can feel like a responsibility you don’t want. While you certainly aren’t required to report any discrimination, doing so – whether within the company or on a larger legal level – can help improve the workplace for all employees.
For instance, a 2017 report by Out and Equal, an LGBT workplace advocate group, indicates there are many benefits to LGBT employees who are openly out at work. Overall, an LGBT employee who is out will face significantly less discrimination regarding their sexual orientation. The study further found that these employees experience increased job satisfaction and productivity as well as improved workplace relationships. These improvements are further linked to higher job commitment and even improved health!
In comparison, LGBT employees who are not out at work were 73 percent more likely than their out counterparts to report that they will leave their companies within three years.
Businesses and places of employment should also care to promote open, tolerant environments for work: those employees who feel more open and less likely to witness or be subject to discrimination – whether sexual orientation or otherwise – lead to increased employee morale, which is a boost to company culture, reputation, and bottom line.
Across the State of California, California Sexual Harassment Attorney helps employees fight illegal workplace discrimination, including sexual orientation discrimination. With over many years of experience in workplace discrimination and the rights of LGBTQ employees, we have all the right knowledge and tools. Call us today at 800-905-1856 for a consultation to learn how we can help you.