Updated: Dec 22, 2022
What can LGBTQ+ employees do when they become targets of discrimination?
Sexual Orientation Discrimination refers to willful bias against people who are not heterosexual in orientation. It is sometimes referred to as LGBTQ+ discrimination (includes lesbian, gay, bisexual, transgender, queer, non-binary, etc.).
Although, by basic definition, Sexual Orientation Discrimination should cover all forms of discrimination brought by prejudice against an employee's sexuality. If allusions are made to the subject's sexuality, whether regarded as "straight" or not, it should count. In your California Attorney Search, consider learning about what you might encounter.
So, let's discuss LGBT+ employee rights, as they are often handled by a prescreened LGBT employment lawyer in California:
While a heterosexual worker discriminating against an LGBTQ+ employee is a common scenario, discrimination may also occur in the opposite direction, with an LGBTQ+ employee discriminating against a heterosexual employee. However, the LGBTQ+ community has had a long history of exclusion and discrimination. Most of the time, they're on the receiving end of it.
Discrimination can begin innocently enough, but it may escalate into serious acts such as deliberate infliction of emotional or mental stress, physical attack or battery, defamation, and/or invasion of privacy.
Discrimination may occur based on both actual and perceived sexual orientation, regardless of how victims identify themselves. Even if an employee is not a lesbian or is not out at work as a lesbian, it is discrimination if an employee claims another employee is a lesbian and discriminates against them as a result.
That said, if you've been experiencing LGBT discrimination in the workplace due to your sexual orientation, contact a prescreened LGBT employment lawyer in California to help you.
What constitutes discrimination in California?
LGBT discrimination at work may be overt or covert. Still, each case requires an adverse job action as a result of a colleague's prejudice.
Here are examples of what to look out for:
Finding out that an applicant or employee engages in a same-sex relationship, and a company refuses to recruit, withdraws a job offer, or fires an employee.
Refusing to promote someone because of their sexual orientation.
Promoting non-LBGTQ+ workers who are less eligible.
Paying an LGBTQ+ employee less than other workers who do the same job.
Excluding LGBTQ+ staff from some forms of employment.
Workers who are LGBTQ+ are denied the same benefits as straight, cis-gender, or heterosexual employees.
An employer allowing a target's coworkers to create hostile work environments; i.e., allowing or ignoring incidents of bullying, microaggressions, or targeted harassment.
California law protects workers from workplace abuse, such as threats, hostile conduct, or repetitive, derogatory jokes that specifically target an individual's sexual orientation, in addition to barring employers from discriminating against employees based on their sexual orientation. If you've been experiencing any of these, consult with an LGBT employment lawyer in California to protect your rights.
California LGBT Rights In The Workplace
Fortunately, California is one of the states with the largest number of working lesbian, gay, bisexual, and transgender people. All discrimination based on an employee's sex, sexual orientation, or gender identity is prohibited under the California Fair Employment and Housing Act (FEHA).
The prohibition includes hiring, promoting, firing, demoting, or any other acts that affect an employee's pay, benefits, working conditions, and other factors related to their employment. It prohibits discriminatory actions on the grounds of an employee being a man or a woman or failing to conform to a stereotype or socially-constructed expectation of how an individual should act.
California's Anti-Discrimination Act prohibits LGBT discrimination at work. The California Fair Employment and Housing Act (FEHA) protects LGBTQ+ and gender non-conforming employees from discrimination and abuse in the workplace. Individuals are also protected under the FEHA from discrimination based on their sex, ethnicity, gender orientation, or gender speech.
Once a company hires five employees—a good number to compare how one is treated to the rest—these workers are all eligible to file a discrimination case. Moreover, under the FEHA, an organization only has to hire one employee for employees to be able to file discrimination charges based on sexual orientation.
Discrimination based on gender and sexual orientation is illegal in the United States. The Equal Employment Opportunity Commission (EEOC) filed its first two cases on behalf of employees facing sexual orientation discrimination in early 2016.
Like other forms of discrimination, sexual orientation is protected under Title VII of the Civil Rights Act. Sexual orientation discrimination, according to the EEOC, is sex discrimination.
The following are examples of sexual orientation discrimination, according to the EEOC:
Employees are being denied promotions whether they are gay or straight.
Target's sexuality is constantly brought up at work, and it begins to affect how well they perform tasks.
Employees are being harassed because of their sexual orientation or gender identity.
Salary and work placement decisions centered on an employee's sexual orientation or gender identity.
Employees who have experienced prejudice and biases related to their sexual orientation can now file a case with the help of the Equal Employment Opportunity Commission (EEOC). This may lead to hearings, voluntary settlements, or litigation. If federal courts favor the EEOC, workplace LGBTQ+ discrimination cases will have strong claims in the future.
What Can An Employer Do To Prevent LGBTQ Workplace Discrimination In California?
1. Hold Educational Conferences and Trainings
The new law aims to emphasize these protected attributes in anti-harassment training to help deter workplace harassment of LGBTQ+ workers. Employers or obliged, by law, to ensure full compliance. However, training on these dynamic and contentious subjects can be difficult.
The discussion of sexual orientation, gender identity and expression, and the complexities of gender transitions requires the education process to slow down. Going too fast will either cut down on the necessary time for discussions or will prompt facilitators to skin over them entirely.
Trainers should make sure to stay on board with the training and devote enough time to the other aspects of the company's overall harassment and discrimination prevention program; including actionable tasks like monitoring, incident investigation, and non-retaliation safeguards. There are ways for an employer to ensure full compliance with the new legislation while also ensuring that all of the training's features and topics are properly addressed.
2. Outline and describe how the legislation and company practices require LGBTQ+ workers to be handled fairly.
The aim of California's mandatory harassment training is to create a respectful work environment. Race, national origin, sex, sexual orientation, gender, gender expression, gender identity, religion, marital status, genetic characteristics, ancestry, mental impairment, physical disability, medical condition, military/veteran status, and age are all covered characteristics under California law. At least 12 of these characteristics can be found in every workplace.
Employers should use the training to remind managers that the law's goal is to create a respectful workplace atmosphere, not to reduce someone to their characteristics. Everyone has an ethnicity, skin color, ancestry, gender, gender expression, gender identity, and sexual orientation. A single characteristic or a small group of characteristics cannot define an individual because several characteristics relate to all.
3. Emphasize the importance of assessing workers based on their outputs, not their identity.
The California Supreme Court described harassment as "behavior beyond the scope of required job performance, conduct presumably engaged in for personal pleasure, out of meanness or discrimination, or for other personal reasons" in a 1998 decision.
Employers may want to emphasize that managers' primary concern should be the job performance of their direct reports and other workers in the company, rather than an employee's gender identity, gender expression, or sexual preference (or some other protected characteristic) unless it is to avoid harassment or prejudice.
During training, employers can remind managers that if an employee is doing a good job, then it is a step towards the company's objectives. Regardless of who they are, they are entitled to equal respect, regardless of gender identity or language, sexual orientation, or any other attribute.
Employers who are more knowledgeable about gender and sexual identities are less likely to have prejudices in the workplace. As a result, you can mitigate cases of sexual harassment and discrimination. Employers must advise all employees that they are not allowed to discriminate on the basis of sexual preference or identity. Recognizing and honoring the persona of an employee will often go a long way.
4. Emphasize the importance of managers adhering to these policies.
In a recent study on sex discrimination, the United States Equal Employment Opportunity Commission stressed that the aim of compliance training is not to change your mind. It's enough preparation in order to keep your job.
This assertion acknowledges the limitations of anti-harassment education. A two-hour mandatory training session is unlikely to change a supervisor's mind about transgender people if, for example, he or she refuses to call transgender workers by their chosen names or refer to them by their preferred pronouns.
The goal of the training is to make sure managers are fully aware of the workplace behavior requirements and the disciplinary repercussions if those standards are not met. Employers must inform managers, staff, and administrators about legally acceptable and reasonable practices and actions, as well as what constitutes illegal activity.
Employers should expect the newly passed rules and regulations to be strictly followed, notwithstanding the continuing fights for equity and non-discrimination. In the future, more protective LGBTQ discrimination laws and policies are expected to be implemented. Employers must also continue to change in terms of offering a supportive and secure working atmosphere for all workers, not just transgender employees.
What Can You Do If You Experience LGBTQ Workplace Discrimination In California?
Even if the law does not expressly protect victims of discrimination based on sexual orientation, your organization can. Here are some good ways to start defending yourself from sexual orientation discrimination at work, regardless of your situation:
Make sure you're familiar with company policies. If you work for a private organization, read the employee handbook and other related documents to learn about their anti-discrimination policies. Is there a structured grievance or complaint procedure in place? When a formal complaint is filed, what steps does the company take? As an employee, what is your contractual role? (Do this as soon as you start working at a job, or even when you're still considering.)
Examine the collective bargaining agreement (CBA). If you're a labor association or union member, make sure you know if and how that system protects you from discrimination based on sexual orientation.
Know your state rights in California. The FEHA protects employees from workplace discrimination based on their sexual orientation.
Keep track of any positive comments and recommendations you get from your boss and coworkers. This can vary from formal annual or semi-annual reports to input from management or coworkers on individual work or programs, as well as congratulatory emails. This knowledge can be useful in the event of prejudice based on sexual orientation.
Use your voice. When prejudice and discriminatory acts happen, the only way to deal with them is often right then and there. Make it clear to the boss that the conduct is unwanted and unacceptable. This could be sufficient in some cases to discourage further discrimination.
Look for an ally. An ally maybe someone you trust, whether they are LGBTQ+ or not, whether they are a coworker or a friend from another location. Talking to others will help you gain perspective, listen to your story, and even provide advice.
Can I Sue My Job For Being Sexist, Homophobic, And Transphobic?
If you have a gut feeling, it must be coming from somewhere. You don't just wake up one morning and conclude that you are being targeted at work. There must be small, tell-tale signs that made you feel this way.
If so, you may want to start collecting proof to back up a possible case in the future.
Keep track of any instances of prejudice or behavior that may be construed as such. This can be as basic as a folder or spreadsheet with dates, times, places, people involved, and a description of what happened. Try to take note of why you think it's discriminatory, even when you're unsure of it. This knowledge should be kept out of the office, maybe on your phone or at home.
Gather some proof. This can include physical evidence as well as online chats and messages from or relating to the culprit or perpetrator. These can be in the form of letters, emails, texts, voicemails, instant messages (Slack, Skype, iMessage, etc.), images, pay stubs, receipts, and so on. Compile a list of witnesses wherever possible – for example, if a third person was standing next to you when the discrimination happened.
You should keep track of your case and be as thorough as possible. Any form of proof could be useful in providing additional confirmation of your reports, and therefore a much easier time forwarding your California employment discrimination lawsuit in the future. Consider storing digital copies in your own private email or other accounts or printing out copies of digital correspondence to access it outside of the office.
Unfortunately, you can't always get hold of evidence, such as emails or text messages. When this happens, you can still prove sexual orientation discrimination if you can display a series of actions that, when taken together, have a collective negative impact on an employee's capacity to work. You may notice a culture of LGBT discrimination in the workplace, and that's usually comprised of small little habits that continue to happen because of tolerance.
Inform your boss. Informing your boss when you believe you are being harassed or discriminated against shows that your concerns are grave and it should be addressed immediately. You should inform them of any formal or legal action that you might be considering. Remember that although your employer is required to follow the law, you are responsible for ensuring that your personal rights are protected.
When it comes to sexual orientation discrimination, there is a general protocol that must be followed. The first move is to speak with your boss. If talking to your boss doesn't fix the issue, you can file a complaint with the California Department of Fair Employment and Housing.
You can receive a 'right to sue' letter after the regulatory agency has finished its investigation. You have the option to file a California employment discrimination lawsuit in court at this stage. If you haven't already done so, now is the time to hire experienced gender discrimination lawyers in Los Angeles.
Filing a formal complaint is a good idea. Whether by the company's internal grievance or complaint process or by a trade union or association, filing a complaint or lawsuit is the first step in combating discrimination.
You can start with your company's HR department. Most interpersonal problems between co-workers are addressed there, but they can handle more serious cases, too. Your HR should know the laws regarding discrimination of protected characteristics, and if they do it right, they will immediately start an investigation and dole out punishment as soon as possible. Remember that discrimination at work is illegal, not just an act of misbehavior.
Begin an investigation in accordance with California law. The FEHA protects employees from LGBT discrimination in the workplace. The Department of Fair Employment and Housing (DFEH) allows people to file a discrimination complaint online. This kicks off a formal investigation, which starts with deciding whether the DFEH can support the charges, which is why it's so important to keep track of cases and evidence of discrimination.
The DFEH has the power to conduct on-site and telephone interviews and conduct oath interviews, issue formal subpoenas, and request non-permanent restraining orders. Although the procedure can take a long time, the DFEH strives to conclude all inquiries within a year of receiving the complaint.
Consult gender discrimination lawyers in Los Angeles. This may seem to be an unnecessary measure, but knowing all of your rights is the best way to avoid more discrimination. And if your employer or trade union doesn't have a structured complaint process in place, the California Employment Law Attorneys can provide you with other legal options.
Since the legal landscape of sexual orientation and LGBTQ+ rights is currently in flux, a legal team specializing in these fields may be particularly useful. If you're finding trouble matching up with a Los Angeles Discrimination Attorney that can address your specific concerns, private firms offer referral services to ease the search.
Should I Sue For LGBT Discrimination At Work In California?
If your boss or colleagues discriminate against you because of your sexual preference, start by addressing the issue at work. This may be with a boss or with the HR department. If you are concerned about retribution, consult gender discrimination lawyers in Los Angeles first. He or she will tell you about your rights at work and the best course of action to take.
It's important to keep documented records of any cases of sexual orientation abuse or discrimination. The dates, times, and locations of the abuse or prejudice should be detailed in these notes. They should also have the names of those involved. It's important to keep track of emails, written correspondence, and other evidence that supports the discrimination argument.
An individual must file an administrative claim with the California Department of Fair Employment and Housing to enforce the FEHA protections. After that, this department will launch an investigation into a potential case of discrimination or abuse. Employees have one year from the date of the discrimination to make a lawsuit for sexual orientation discrimination.
You have the option to take the case to an administrative hearing for damages after the department reviews the case and finds violations. You may also take the case to federal court and have it heard by a judge or jury.
Proving Discrimination Based on Sexual Orientation
An employee must assert the following in order to file a sexual orientation discrimination lawsuit in California:
They were subjected to adverse employment behavior on the part of their employer.
Their sexual preference was a major motivator for the action taken against them.
Because of the employer's actions, the employee was hurt.
Definitive acts, such as termination or demotion, are examples of adverse job actions. Also, adverse job acts that reflect a pattern of activities that, when taken together, are shown to harm an employee's terms or privileges may be called adverse job actions.
What is an "adverse job action"?
These are acts that are likely to jeopardize an otherwise competent employee's job performance or opportunities for advancement or promotion in their chosen field.
Acts that merely irritate an employee, on the other hand, would not be considered instances of adverse job behavior. An employer that learns an employee is gay and fires him instantly is an example of a decisive move. However, as previously said, such acts do not have to be taken to this extent.
Finally, a substantial driving factor is the true reason for taking an adverse job action in the first place. This may be discriminatory, but that isn't always the case.
What About Cases of Sexual Harassment In The Workplace?
The obsession with an employee's sexual orientation can sometimes create hostile environments where their sexuality becomes the main target. While not exclusively a case that's directly related to Sexual Orientation Discrimination, incidents of sexual harassment on top of the discrimination have happened before.
Sexual harassment is described by the Equal Employment Opportunity Commission (EEOC) as a type of sex discrimination that violates Title VII of the Civil Rights Act of 1964. California has similar legislation that gives workers even more protection.
The law describes sexual harassment as a wide range of inappropriate acts or activities that have a negative impact on an employee's working conditions.
What Are the Different Types of Sexual Harassment at Work?
The majority of sexual harassment cases in the workplace fall into one of two categories:
Sexual assault in exchange for monetary gain. Quid pro quo is a Latin phrase that means "something in exchange for something." This is a form of sexual assault in which an employee is forced to engage in sexual activity in exchange for a promotion, work retention, or some type of job gain.
Sexual assault in a hostile work environment. This form of abuse occurs under California law when the harassment changes the employee's working conditions in such a way that it makes it more difficult for targeted employees to do their jobs.
If the harassment has unreasonably interfered with the plaintiff's job performance or created an intimidating, aggressive, or offensive work environment, a single instance of harassing conduct is sufficient to determine the presence of a hostile work environment. Since the presence of a hostile work atmosphere is contingent on the entirety of the conditions, even a single insensitive comment may be used to prove abuse.
Common Examples of Sexual Harassment in the Workplace
Sexual abuse manifests itself in a variety of ways. It could happen between a supervisor and a subordinate. It may happen between male and female colleagues. It may also be an aggressive, sexually charged workplace that makes anyone feel uneasy.
Sexual assault can take several forms, from offensive remarks to improper contact. It can escalate to the point of sexual harassment at work and criminal prosecution in some cases. More examples of workplace sexual abuse include, but are not limited to:
Make a sexual favor submission
Sexual behavior, whether verbal or actual
Making crude or sexual remarks or gestures
Sending pornography without permission
Leering, impeding, or preventing movement
There are more examples, and they are more likely to happen in the workplace than you think:
Abuse via email To threaten a victim, the attacker may use digital media such as email, social media, or other means of communication.
Harassment of people of the same gender. Men who make unwelcome sexual advances toward women are not the only ones who engage in sexual harassment. Sexual harassment may occur between two people, either men or women. It doesn't make it any less painful for the victim or less inappropriate for the workplace because of the sex or gender involved.
Sexual orientation discrimination. Sexual harassment occurs when a person is taunted, ridiculed, or punished because of their sexual orientation.
If you have been the victim of sexual assault at work, you can contact a LGBT employment lawyer in California right away. They will assist you in determining what evidence is required to prosecute your case successfully. You have the right to a harassment-free workplace regardless of your gender, age, marital status, or sexual orientation.
LGBT Discrimination At Work Leading to Wrongful Termination
If you were booted out from a job because of your sexual orientation, then your case already intersects with a wrongful termination claim.
The Fair Housing and Employment Act (FEHA) of California specifically forbids discrimination based on sexual orientation.
Although these features are not explicitly protected under Title VII of the Civil Rights Act, the Equal Employment Opportunity Commission (EEOC), the body that enforces federal LGBTQ discrimination laws banning employment discrimination, has claimed that sexual orientation discrimination is also a form of sex discrimination. If you were fired for being gay or bisexual, you might be entitled to file a wrongful termination claim.
In general, jobs in California is at will. This ensures that you can be fired at any moment, and your employer is not required to give you a reason. There are, however, circumstances under which the termination is deemed unfair, and you can file a complaint under those circumstances. When you are fired because of your sexual orientation or association with someone with a different sexual orientation, an example.
Under the FEHA, it is unlawful for the employer to fire you because of your sexual orientation or in retaliation for filing a complaint of sex discrimination or assault or defending someone else from illegal sexual orientation discrimination.
What is a Constructive Dismissal Claim?
In some cases, an employee may not be fired outright but is forced to work in intolerable conditions for a purpose that is illegal or violates public policy. This could give the impression that the employee was forced to resign.
If you are subjected to abuse or discrimination because you are gay or bisexual, you will be able to file a wrongful termination lawsuit on the grounds of constructive discharge in breach of public policy and/or the FEHA.
To prove constructive dismissal, you must show that the defendant who employed you had subjected you to unacceptable working conditions that were so intolerable that a reasonable person in your position would have no choice but to resign, and that the employer intentionally created or knowingly allowed those conditions, and that you resigned as a result of those conditions.
For conditions to be deemed "unacceptable" at the time of your resignation, the working environment must be extremely egregious at the tail-end of your employment. For example, if you were subjected to slurs or physical abuse because of your sexual orientation by several colleagues or your boss, and your employer did nothing about it, these work conditions may be grounds for a constructive dismissal claim.
Furthermore, the employer's awareness of these provisions' effects is critical in pursuing a constructive dismissal or wrongful termination claim. Before you resign, you can work with a California LGBT employment law attorney to ensure that what is happening to you has escalated to the point that you have to take legal action.
Back pay, front pay, emotional distress costs, interest, and lawyers' fees are all possible damages in a wrongful termination case. For genuinely egregious actions by your boss, you might be entitled to recover punitive damages in some instances. Although, the number of damages you can recover under Title VII may be limited.
Should You Be Wary of Retaliation?
An employer may not discriminate against an employee who engages in a protected action, such as filing a discrimination lawsuit under federal and California laws. This is embedded in California's Fair Employment and Housing Act (FEHA), as well as the fact that federal law protects LGBTQ employees.
If you believe you have been subjected to harassment as a result of filing a discrimination complaint with HR, filing a charge with the EEOC or the DFEH, or assisting those who have filed a complaint, you can contact a gender discrimination lawyers in Los Angeles for advice.
How Do I Spot an Incident of Retaliation?
An employer is not allowed to retaliate against an employee who files a discrimination lawsuit under the FEHA. In most cases, FEHA gives workers more rights than a statute like Title VII, but both include provisions that prevent employers from retaliating against employees who engage in protected conduct.
Employers in California are prohibited from retaliating against workers who report discrimination based on race, color, religion, age, ancestry, national origin, disability or medical condition, genetic information, marital status, sex or gender, sexual orientation, gender identity, military or veteran status, or genetic information.
Retaliation can take several forms, including a variety of negative measures taken against an employee for exercising a protected right. Materiality can be used to quantify and determine adverse job acts; it can also be used to calculate possible payable damages that you may be awarded. The supposed retaliation had to have had a significant impact on your work terms and conditions.
Proving a Retaliation Claim
To prove retaliation, you must show that you participated in the protected practice of filing for workplace discrimination in California, that you were subjected to unjust behavior, and that the adverse employment action was causally related to your filing of the complaint.
To be deemed a protected practice, the complaint does not have to be formal. In other words, even though you did not file a complaint with the DFEH, if you report to a boss that your superior or colleague is sexually assaulting you and you are transferred to a lower-paying department or position as a result, those are still grounds for retaliation.
Filing a complaint involves immediately alerting the employer, and it will be followed up by an investigation. It's also best to consult someone about the weight of your claims. Ensuring that the discriminatory incidents you are citing are indeed considered illegal by law will assure your success on both discrimination and retaliation claims.
Are there Payable Damages in Retaliation Claims?
You can still sue for retaliation damages even though the court finds the cited actions as non-discriminatory by legal definition. You may have reason to assume that your employer refused to promote you because of your race, for example. However, even though you file a claim for workplace discrimination in California that may not result in a favorable outcome, you will still be able to win on the retaliation charge.
If you are the victim of retaliation in California, you might be able to recover a variety of damages, depending on the form of adverse action taken against you. For example, if you are fired because your employer claims you may not have reported sexual harassment, you are entitled to the salary you would have received if you had remained working until you might reasonably be expected to find another job.
Every case has its own set of evidence, so speaking with an experienced LGBT employment lawyer in California about your situation can be beneficial.
Are you looking for an LGBT employment lawyer in California?
Any employer in California who discriminates against current or prospective workers based on their sexual orientation is breaking the law. As a result, if you are the victim of sexual orientation discrimination, you have the legal right to sue. A skilled LGBT employment lawyer in California will assist you in filing a case and defending your interests.
A prescreened LGBT employment lawyer in California will help you make a good argument to protect your civil rights in the workplace if you are fired, suspended, not employed, demoted, or treated differently because of your actual or perceived sexuality (transgender and non-binary included). No one should be subjected to such abuse or workplace discrimination in California, and a Los Angeles employment lawyer for LGBTQ+ will assist you.
You may be entitled to compensation for missed income, additional benefits, damages for physical injury or mental distress, and legal fees. Discrimination based on sexual identity is not tolerated in any workplace. Allow a prescreened LGBT employment lawyer in California to assist you in fighting someone who is breaking the law.
What are the Possible Payable Damages for Workplace Discrimination in California?
If you were discriminated against because of your sexual orientation, you could be entitled to a variety of damages and remedies, including but not limited to:
A lawsuit's attorney fees and expenses
Re-employment or promotion
Changes in policy and preparation
Non-economic losses, such as mental anguish
Punitive damages are used to discipline an employer that has engaged in illegal behavior.
Employers who violate discrimination laws can face administrative penalties from the California Department of Fair Employment and Housing.
Where Do You Start With LGBT Discrimination In The Workplace?
If you believe you have been a target of workplace discrimination, then you might want to file a complaint. Here are your options:
State or local government employees may file a charge of discrimination by contacting the EEOC at 1-800-669-4000.
The federal government sector can help you start the process by contacting an EEO counselor.
Private firms like 1000Attorneys.com also provide a referral service that matches you up with a fitting gender discrimination lawyers in Los Angeles. 1000Attorneys.com is certified by the California Bar Association to direct you to the most fitting Employment Law Firms in Los Angeles.