If you are experiencing workplace discrimination due to your sexual orientation, you are not alone. In a 2017 report, one in four LGBT employees reported experiencing employment discrimination in the last five years.
Sexual orientation can often feel like a private matter, and when it is discriminated against or violated in the workplace, victims of sexual orientation discrimination may feel alone, scared, and embarrassed, an. d often unsure what protections or actions to recourse are available.
It is possible to experience sexual orientation discrimination even if you do not identify as an LGBTQ individual. While sexual orientation frequently assumes non-heterosexuality, it is not necessary in order for sexual orientation discrimination to occur.
California Sexual Harassment Attorney has more than XX years’ experience in working with cases of sexual orientation discrimination. The intersection of labor laws and sexual orientation protections are ever-changing, but our legal team stays abreast of these changes, providing individuals throughout California with the most professional legal advice.
The following information is meant to provide background and insight into sexual orientation and workplace discrimination related to it. While sexual orientation often implies LGBTQ individuals, it extends to heterosexual individuals, too. Know that this information is not legal advice, for only attorneys with specific knowledge of your situation can provide that.
What Is Sexual Orientation?
Sexual orientation refers to repeated or long-term romantic or sexual attraction one person feels towards other people – whether to persons of the opposite gender, persons of the same gender, or persons of both or more than one gender. Typical concepts of sexual orientation include heterosexuality, homosexuality (lesbian or gay), bisexuality, and pansexuality.
Sexual orientation is frequently described via the shorthand LGBTQ. LGBTQ stands for “lesbian, gay, bisexual, transsexual, and queer and/or questioning”. This term also describes a wider culture.
What Is Sexual Orientation Discrimination?
Sexual orientation discrimination can occur in any setting and in any form. In the workplace, the discrimination often has to do with an employee being treated unfairly by any person in the workplace because of the subject’s sexual orientation, whether it is real or perceived. This discrimination can be clear and obvious or subtle and off-the-radar.
The discriminator may be a co-worker or supervisor but is not limited to those roles. The discriminator can also be a colleague in a different department, an indirect supervisor or boss in another company area, an executive, or even a client or customer of the company.
Cases of sexual orientation discrimination are often situations where an employee is discriminating against another employee who is lesbian, gay, bisexual, transgender, or queer/questioning. Still, the employee who is subject to discrimination does not have to be LGBTQ for the discrimination to apply.
Further, heterosexual men and women can also be discriminated against on the basis of sexual orientation.
Examples of Sexual Orientation Discrimination
Discrimination due to sexual orientation can take many forms, and it’s important to remember that the subject’s discrimination can be based on his/her real or perceived sexual orientation.
The following are examples of discrimination specifically due to the sexual orientation of an individual, whether real or perceived:
- Refusing to extend an employment offer
- Refusing a promotion, raise, or benefits to an employee
- Firing or terminating an employee
- Reviewing employee performance poorly
- Preventing an employee access to opportunities such as promotions, trainings, in-house education, and other job resources
- Engaging in or otherwise sanctioning continuing discrimination by employees, leading to a hostile work environment
- Harassing, bullying, threatening, or otherwise retaliating against an employee who formally reports a complaint of sexual orientation discrimination, or for helping another employee do so
Discrimination can have a tangible effect, such as the firing of an employee. It can, however, still occur in situations where the targeted employee continues his or her job, but has difficulty doing so owing to emotional, mental, or other factors from the discrimination that affect the job. This situation is sometimes known as a hostile work environment.
Who Is Affected by Sexual Orientation Discrimination?
Sexual orientation discrimination can affect anyone, regardless of their gender or sexual orientation. In fact, employees who discriminate against other employees are often doing so based on a perceived notion of someone’s sexual orientation – the assumption that someone is gay or bisexual, perhaps, even when the subject hasn’t openly shared his/her sexual orientation or the assumption is incorrect.
Where and When Can It Happen?
Sexual orientation discrimination can occur at any time and in any place. Because it is a type of workplace discrimination, it often occurs at work or at work-related functions, like after-hours events, teambuilding activities, etc. It can also be related to meeting with customers and/or clients of your employer.
With the advent and persistent presence of the internet, colleagues and employers can be in touch at any time of day or evening, beyond the confines of a physical work environment. This means that emails, phone calls, text, instant messaging (such as Skype, Slack, etc.), online communication, photographs, websites, and social media are all ways that the discrimination can occur.
Does Federal Law Extend Protection to LGBTQ Employees?
Sexual harassment and discrimination at the workplace were made illegal by Title VII, as ensconced in the Civil Rights Act of 1964. However, the law did not include any protection for LGBTQ employees. This is a topic of much debate; in fact, in 2017, the U.S. Supreme Court ruled that Title VII does not extend to discrimination based on sexual orientation.
That said, the laws around sexual orientation discrimination are shifting rapidly. Several states, including California, extend protection to employees around sexual orientation. The states that do provide this protection often apply to sexual orientation discrimination the same definitions, procedures, penalties of those who discriminate on other factors as defined in Title VII. Those who are subject to sexual orientation discrimination may have similar rights to those protected under Title VII.
California Laws for Sexual Orientation Discrimination
Both discrimination and harassment in the workplace due to sexual orientation are illegal in California, prohibited by the California Fair Employment and Housing Act (FEHA). Both FEHA and provisions in the California Government Code offer protection for employees’ rights, including those being discriminated against at work due to their sexual orientation or gender identity.
The FEHA further protects the subject of sexual orientation discrimination from retaliation in the case of protest. It is illegal for a company or employer to get back at any employee who is reporting or otherwise formally filing against illegal workplace discrimination.
California law further prohibits the discrimination of an employee based on a perceived assumption – that someone is or isn’t gay, for instance.
To make a case towards sexual orientation discrimination in the workplace, the case must involve an employee taking an adverse employment action against the subject specifically due to the his or her sexual orientation, whether LGBTQ or heterosexual.
Preventing Sexual Orientation Discrimination in The Workplace
Preventing workplace discrimination is difficult because it is out of the control of the victim. There are a few ways that both the employer at large and the individual employee can help prevent sexual orientation discrimination.
Employers, no matter the company, size, or industry, can help prevent sexual orientation discrimination in the following ways:
- Build sexual orientation discrimination into the company’s anti-discriminatory policies.
- Talk about the topic often and openly to the company, ensuring that it isn’t merely a procedural policy, but something that requires attention. This can help shut down anyone who is considering discrimination or make those individuals aware of their thoughts before they put them into action towards other employees.
- Provide a formal, private way for individuals to voice situations of sexual orientation discrimination. Make clear that there is a process involved in the case of a formal complaint.
- Take action. If an individual raises a situation, move swiftly to indicate that the company is paying attention. This may not mean that the discriminatory employee is immediately penalized, but perhaps that an investigation into the claims gets started right away.
As always, actions speak louder than words. Companies whose actions – not simply policy talk – indicate they are serious when it comes to cracking down on discrimination. Employees will see that their company has acted when called upon, and this can help deter future instances of discrimination.
Individuals who are the subject of sexual orientation discrimination may be help the prevention or containment of it in the following ways:
- Let the individual(s) who is acting in a discriminatory manner know that their actions and words are inappropriate and unwelcome. While this may feel awkward, it could help establish that you understand your rights, which could prevent future discriminatory episodes, to you and to others.
- Know your rights. Understand your company’s anti-discriminatory practices and your state and local laws to know exactly what can or cannot constitute sexual orientation discrimination, as well as your rights to fight the injustice.
- Talk to human resources (HR) or the department in your company who handles inter-employee dialogue. You do not need to share specifics yet, but you can let them know you feel you are being discriminated against and inquire what their policies and procedures are. This is an important way of establishing that you are willing to protect your individual rights, and it will remind HR of their legal duty to uphold the laws and policies that make discrimination illegal.
- Find an ally, whether a friend or colleague, who you can speak with honestly when these situations occur. An ally can provide emotional support and she or he may be in a position to provide advice and/or affect change.
- Make a formal complaint. Consider filing a formal report, grievance, or complaint in response to sexual orientation discrimination. This may go through your employer, a labor organization, the California Department for Fair Employment and Housing (DFEH), or a labor attorney. As companies see that individuals who have been discriminated against are unwilling to accept the situation, companies may move to enact change within their organization.
- Speak with a labor and discrimination attorney. An experienced legal team will provide legal counsel that is specific to your situation, taking in your employer’s antidiscrimination policies and California law. Professional legal teams also stay abreast of the ever-changing policies affecting the LGBTQ community.
Depending on your work environment, you may have several ways to pursue fighting sexual orientation discrimination.
Promoting Sexual Orientation Openness in The Workplace
There are many benefits to the prevention of sexual orientation discrimination. Firstly, of course, is that all employees feel they are treated fairly based on the merit of the work, not on their inherent characteristics.
Nondiscriminatory policies help work environments avoid turning into hostile workplaces due to a few employees. This can boost employee morale and improve relationships with other colleagues and supervisors.
Workplace sexual orientation discrimination still occurs daily across the country, but a shift is occurring in how companies handle or communicate the prohibition of this kind of discrimination. Two decades ago, only four percent of Fortune 500 companies included sexual orientation in their in-house non-discrimination policies. In 2017, that number skyrocketed to 92 percent of Fortune 500 companies.
There’s further evidence that nondiscriminatory practices actually benefit company bottom lines, as well.
LGBTQ employees that are “out” at work report less discrimination and more openness. With improved colleague relationships, the report found that LGBTQ employees had higher job commitment due to increased productivity, job satisfaction, and even improved health.
Resources and Rights for Victims of Sexual Orientation Discrimination in California
If you are concerned that your employer or someone at your workplace is discriminating against you based on your real or assumed sexual orientation, your rights are protected under the law of the State of California. To understand your rights and potential options for recourse, explore resources such as the California Department of Fair Employment and Housing (DFEH), workplace rights alliances, and LGBTQ-friendly organizations.
As always, only a professional legal team can provide specific legal information and advice for your situation.
At California Sexual Harassment Attorney, we specialize in workplace laws as well as sexual orientation discrimination and harassment for individuals in the State of California. Schedule your first consultation with us today – simply call 800-905-1856.