FEDERAL LAW BANS DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION

LGBTQ Discrimination

As of June 15, 2020, the Supreme Court has ruled that the federal law that bans gender discrimination in the workplace also protect against discrimination on the basis of sexual orientation and gender identity. Prior to this decision, there was no federal law that directly prohibited LGBTQ discrimination, although many states, cities and other jurisdictions (Washington DC, Guam and Puerto Rico) in the United States passed laws banning sexual orientation and/or gender identity discrimination in the workplace.

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The decision protects against two types of discrimination: sexual orientation (lesbian, gay, bisexual/pansexual) and gender identity (transgender, non-binary). The Court ruled that the Civil Rights Act of 1964 protects LGBTQ individuals because discrimination against LGBTQ individuals necessarily involves discrimination on the basis of sex. An employer who fires an employee being gay or transgender believes that a man or a woman should act and present themselves in a certain, traditional way. In other words, the Court explained, a man who was fired to being married to a man is experiencing gender discrimination because a woman would not be fired for being married to a man.

A NEW LAW

What does the future hold?

Since the Supreme Court decision, available to read here, in Bostock v. Clayton County is quite new, it is not clear how Congress, the executive branch, or state legislatures will respond, or if they will be able to pass any laws to limit the decision. It is also not clear how this law would apply to other queer identities or people in other non-traditional relationships.

If you think you have experienced LGBTQ discrimination at the workplace, you should contact employment attorneys with experience handling discrimination. The attorneys at Pelton Graham are experienced in advocating for clients who have experienced discrimination. We are happy to talk with you and answer any questions about discrimination. Consultations are free, and as contingency fee attorneys, we do not get paid unless we recover for you.

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Answers to Your Questions About LGBTQ Discrimination

What is LGBTQ discrimination?

LGBTQ discrimination involves differential treatment or harassment of an employee on the basis of their sexual orientation, gender identity, or these traits that they are seen as having. LGBTQ discrimination can occur if an employee is seen as being LGBTQ, whether or not they are.

Can anybody experience LGBTQ discrimination in the workplace?

While workplace discrimination usually occurs between an employer and employee, employees with levels of seniority (superior and subordinate), or co-workers, in some instances an employee can experience LGBTQ discrimination by a client or vendor, particularly if an employer knows about the discrimination and has not taken action to prevent it from recurring.

Have I experienced discrimination?

There are many forms of LGBTQ discrimination. It can be different, less favorable treatment at any stage in the employment process, including help-wanted ads, interviews, pre-employment testing, hiring, job assignments, shift assignments, promotions, compensation, benefits, job training, layoffs or termination.

This kind of discrimination may be very direct, such as when an employee is not hired or is fired because of sexual orientation or gender identity or preconceived ideas about a person’s ability based on whether they are LGBTQ. It can also be more subtle, such as an employer’s policy that inherently discriminates against LGBTQ individuals without a real business need. For example, if the employer offers benefits to opposite-sex spouses but does not offer the same benefits to same-sex spouses, LGBTQ people may be negatively impacted by this rule.

LGBTQ discrimination may come from supervisors, co-workers or in limited circumstances from other individuals, such as vendors or clients. If your employer is creating or allowing an intimidating, hostile or offensive work environment to exist, these practices are also against the law.

Discrimination can also be harassment experienced by an employee because they are LGBTQ or are seen as being LGBTQ. Harassment can include “jokes” or comments about LGBTQ people, derogatory comments about an employee who is LGBTQ, hostile comments or actions toward the employee based on being LGBTQ, or any other action that creates an intimidating, hostile, or offensive work environment, or interferes with the employee’s work performance. To be considered discrimination, harassing actions must be “severe and pervasive.” In other words, an isolated incident or “offhand teasing” would probably not be enough for a lawsuit.

Can my employer punish me for complaining about discrimination?

It is illegal for an employer to take any adverse or punitive actions against an employee for complaining about LGBTQ discrimination or other employment law violations. “Adverse actions” include termination, demotion, discipline, reduction of pay, or any other actions that would cause the average person to avoid making such a complaint. Adverse actions may occur outside the context of work and include threats, including threats of deportation or reporting a person to government authorities.

It is important to note that the discrimination does not have to be proven for the complaining employee to be protected against retaliation. In other words, if an employee makes a complaint about LGBTQ discrimination and is fired a few days later, the employer may be liable for retaliation even if no court or government agency finds that the underlying LGBTQ discrimination actually occurred.

What should I do if I think I’m being discriminated against?

One important step to take if you believe you may be the victim of LGBTQ discrimination in the workplace is to keep a log of all harassing or discriminatory incidents and communications. A log can be a simple handwritten page showing the date of the incidents, what occurred, who was present, and any other relevant information. Your recollection will be best shortly after the incident, but there is no requirement that logs be kept within a certain period of time. Logs are especially important if you do not have any written materials or recordings of incidents.

You should save any communications, such as emails or memos, or social media posts that are harassing or discriminatory or that refer to such incidents.

In some states you are permitted to make audio recordings of conversations that you are part of. Check your state’s laws about recording in-person and telephone conversations. If you live in a “one party” state, you may have the right to make audio recordings of conversations with individuals harassing you or discriminating against you.

The law limits the time that you can file a complaint about LGBTQ discrimination. In addition, many anti-discrimination laws require a two-step process of filing a complaint with a government agency (such as the Equal Employment Opportunity Commission or a state’s Department of Labor) before you can file a lawsuit in court. Since you have a limited amount of time to file any complaint, you should contact an attorney as soon as possible after an incident of harassment or discrimination.