“My boss discriminated against me because I’m gay.” This statement may be more common than you think. According to a recent study by The Williams Institute at UCLA School of Law, over 40 percent of LGBT employees reported facing unfair treatment at some point in their workplace.
What can I do about it? Under the California Fair Employment and Housing Act (FEHA), it is illegal for an employer to discriminate against an employee based on sexual orientation. Sex-based discrimination includes discrimination against an employee’s actual or perceived sexual orientation. For example, an employer discriminates against an employee under the presumption that they are a lesbian. However, the fact is they do not identify as such. Employers cannot use this presumption as a defense. Any sort of sex-based discrimination is illegal, even if the discrimination is not accurate to an employee’s real sexual identity.
What is Discrimination?
Examples of blatant discriminatory action against an employee include:
- Refusing to hire
- Firing or discharging an employee without a valid reason
- Refusing training programs, workshops, or any extra learning activities that could lead to a valid promotion
- Unequal working conditions or compensation
- Reduced or inferior work benefits
Discrimination against an employee for their sexual orientation further includes unwanted and inappropriate comments, jokes, or remarks. An example of this type of discrimination could be an employer’s comments about the employee’s sexual orientation, sex-life, relationship, marriage, or private life. It is illegal for employers to designate different work duties to employees based on their sexual identity.
It is unlawful for employers to treat workers with prejudice based on their sexual orientation. Whether the bias affects the employee favorably or unfavorably, employers must treat their workers the same. Additionally, all employers must take discrimination claims seriously. Meaning; employers cannot deny or ignore a claim based on the claimant’s sexual orientation.
I was Discriminated Against, What Are My Rights?
First, an employee does not have to disclose their sexual orientation throughout the hiring or employment process unless it is reasonably deemed mandatory (for example, if someone is applying to an LGBTQ-focused company or non-profit). An employee can refuse to answer this question and cannot be denied the job based on this reason.
Second, an employee has the right to file a discriminatory claim without the fear of getting fired. Under the FEHA, employees have protection to file a claim and cannot be fired for:
- Opposing workplace harassment or discrimination against an employer or other employees
- Reporting sexual orientation harassment or discrimination
- Assisting investigations or government inquiries for claims
- Filing a harassment or sexual orientation discrimination claim
How To File A Claim
If an employee has been discriminated against within their workplace, they can file a claim with a state administrative agency. In California, it is the Department of Fair Employment and Housing (DFEH)
The steps to filing a claim include:
- Making an account with the DFEH and mailing in an intake form
- Beginning the investigation process
This step involves gathering specific facts and records about the incident(s). Including the name and contact information of the person or entity, you believe discriminated against you (if known). Further, obtain copies of any documents or evidence related to the complaint together with the names and contact information of any known witnesses.
The DFEH will then look over all the compiled documents and information to conclude if the employer has illegally discriminated against the employee. If there is reasonable cause, DFEH will notify the parties of this determination and inform them that the department intends to file a lawsuit in court. Before the lawsuit, a mediation process provides another opportunity to reach an agreement to resolve the dispute. If the case fails to settle during mediation, DFEH may file its lawsuit in court.
Discriminated Against? Here Are Some Possible Remedies.
If the DFEH proceeds with the lawsuit and the court decide that the employer illegally discriminated, available remedies for such discrimination can include:
- Getting the position for which the person was wrongly denied
- Receiving back pay
- Gaining a promotion
- Being reinstated to a job after a wrongful termination
- Receiving front pay
- Receiving reasonable accommodations
- Other remedies that will make the individual whole
How To Prevent Sex-Based Discrimination In The Workplace
Employers should provide proper sexual orientation, sex-based, and sexual harassment training for all employees. Further, training should demonstrate good and improper workplace conduct as well as provide accessible ways to file a claim if discrimination occurs. Lastly, all employers should take discriminatory claims seriously and impose disciplinary actions if discrimination reoccurs.
Contact Pride Legal
If you or a loved one has more concerns regarding gender-based discrimination in the workplace, we invite you to contact us at Pride Legal for legal counseling or further inquiries. To protect your rights, hire someone who understands them.