Asserting Your Rights in Workplace Sexual Orientation Discrimination

Updated by Kevin Navi on June 26th, 2020

Unfortunately, LGBT employees oftentimes face sexual orientation discrimination at work. Here’s how to protect yourself from workplace sexual orientation discrimination in California.

Under Title VII of the Civil Rights Act, any discrimination prohibited on the basis of sex is also prohibited on the basis of sexual orientation and gender identity. California law also protects individuals from employment discrimination on the basis of sexual orientation. Victims of employment discrimination can speak up to a company’s HR department, a state/local anti-discrimination agency, or an attorney to file a charge. A victim of SOD may recover lost wages and benefits, damages for emotional distress, and punitive damages.

Sexual Orientation Discrimination Under California Law

Under the California Fair Employment and Housing Act (FEHA), employees are prohibited from discriminating against employees or job applicants on the basis of sexual orientation (or gender identity) if their employer has at least 5 employees.

However, there are some exceptions to California and federal law protecting workers from sexual orientation discrimination, including:

  • Employees of certain religious entities (such as churches, mosques, etc.)
  • Employees of employers with less than 5 employees

California employees are also protected when revealing their sexuality to co-workers and supervisors. California law prohibits employers from retaliating or discriminating against employees for coming out at work.

FEHA prohibits certain forms of discrimination on the basis of sexual orientation, including but not limited to:

  • Firing
  • Harassment
  • Failing to hire
  • Demoting
  • Failing to promote
  • Reducing wage
  • Denying benefits that other workers receive
  • Assigning inferior work duties
  • Differing conditions of employment

Can I legally be questioned about my sexual orientation in a job interview?

Interviewers are prohibited from directly or indirectly asking job applicants about their sexual orientation.

How long do I have to file a complaint under California law?

California law allows employees three years within the last incident of employment discrimination or retaliation to file a complaint with the DFEH. Employees who feel that their employment rights have been violated by SOD should contact an attorney or their state or local anti-discrimination agency. Victims of discrimination should seek legal help as soon as possible, as many states enforce statutes of limitation for discrimination claims.

Federal Law: Title VII and Bostock v. Clayton County

Until June 15th, 2020, federal law did not protect employees from discrimination based on their sexual orientation. In Bostock v. Clayton County, the Supreme Court ruled that Title VII prohibitions of discrimination on the basis of sex apply to discrimination on the basis of sexual orientation and gender identity. To discriminate against someone on the basis of their sexual orientation or gender identity is to discriminate against them on the basis of their sex, and thus a violation of Title VII.

Are private sector individuals protected under Title VII?

Under Title VII of the Civil Rights Act, private-sector job applicants and employees (current and former) are protected from employment discrimination based on sexual orientation or gender identity if their employer has 15 or more employees. Employees of employers with less than 15 employees are not protected by Title VII from employment discrimination on the basis of their sexual identity.

How do I file an employment discrimination complaint based on sexual orientation?

Anyone with a claim of employment discrimination or retaliation based on sexual orientation must file a claim with the California Department of Fair Employment and Housing (DFEH) rather than the Equal Employment Opportunity Commission (EEOC).

How long do I have to file a charge of sexual orientation discrimination with the EEOC?

If state laws apply, employees have 180 days to file an EEOC charge of employment discrimination on the basis of their sexual orientation or gender identity, or 330 days if their state or local laws uphold Title VII.

Are independent contractors protected from sexual orientation discrimination under Title VII?

Workers legally considered independent contractors are generally not protected from sexual orientation discrimination under Title VII.

Examples of Sexual Orientation Prohibited Under California and Federal Law

Employment Decisions

It is prohibited for an employer to take an employee’s perceived or actual sexual orientation into consideration when making employment decisions. For example, SOD occurs if an employer hires, fires, promotes, demotes, rewards, or punishes an employee because of the employee’s sexual preference(s).

Harassment

There are two types of harassment: quid pro quo and hostile work environment. Quid pro quo harassment occurs when an employee puts up with the harassment to get or keep their job. An example of quid pro quo harassment would be if an employee’s boss (or someone else in a supervising position) touches him inappropriately. Harassment in a hostile work environment harassment (usually comments, jokes, or physical contact made because of an employee’s sexual orientation) occurs when the conduct is severe or pervasive. For example, frequent criticisms of an employee’s homosexuality would count as pervasive and thus constitute a hostile work environment. Even one severe incident, such as a particularly offensive comment or some sort of physical touching, may constitute a hostile work environment.

Benefits Discrimination

An employee may not be denied or receive fewer benefits because of their sexual orientation. An incident of benefits discrimination may include, but not be limited to, denial or decreasing the following benefits:

  • life insurance
  • health insurance
  • long-term or short-term disability
  • disability retirement
  • severance
  • service retirement
  • early retirement incentives

Proving benefits discrimination often requires reviewing the benefits of employees in comparable positions.

Perceived vs. Actual Sexual Orientation Under The Law

California and federal law ban both “perceived” and “actual” sexual orientation, meaning employees are protected regardless of whether the discriminating employer is mistaken about an employee’s identity.

Contact Pride Legal

If you or a loved one is a victim of workplace sexual orientation discrimination, contact Pride Legal. We’ll get you in touch with an LGBT-friendly Employment Discrimination Attorney that meets your needs and preferences! To protect your rights, hire someone who understands them.