According to a 2023 Human Rights Campaign report, nearly 47% of LGBTQ+ employees have faced workplace discrimination or harassment, and 25% have left jobs due to bias. The championing of lesbian, gay, bisexual, transgender, queer, or questioning (LGBTQ+) rights has not eliminated discrimination against employees based on their sexual orientation in workplace settings. Workers encounter various forms of mistreatment, termination, and harassment because of their identity and affiliations. Discrimination presents itself through all stages of employment, including recruitment, regular interactions, and promotional opportunities.
Employees who do not identify as LGBTQ+ but face discrimination because others believe they belong to the community or have connections with LGBTQ+ individuals are also victims of workplace discrimination. Victims who endure discrimination typically develop emotional issues alongside anxiety and depression. Many workers hide their identities because of discrimination fears, which results in job unhappiness and lower work performance.
California provides legal protection for LGBTQ+ employees through the Fair Employment and Housing Act (FEHA) and the Fair Pay Act. If you are a sexual orientation discrimination victim in San Diego, seek help from Empower Sexual Harassment Attorneys.
What Sexual Orientation Means
Sexual orientation is an enduring pattern of emotional, romantic, or sexual attractions that people feel toward men, women, or both sexes. The concept includes how individuals identify themselves based on their attractions. Identity includes multiple orientations that form a continuum-based fundamental aspect of the self.
Heterosexuality describes romantic attraction, sexual attraction, or sexual behavior between people of the opposite sex or gender. The traditional and socially dominant sexual orientation has been recognized as heterosexuality. Homosexuality refers to sexual attraction, romantic attraction, or sexual behavior between members of the same sex or gender. The term “gay” is an interchangeable word, especially for men, alongside “lesbianism,” which describes female homosexuality.
Bisexuality describes attraction and sexual behavior toward males and females together with more than one gender or people who belong to different gender combinations. Bisexuality exists when someone possesses the potential to be romantically attracted or sexually attracted to people of other genders. Still, this attraction does not need to be simultaneously equal in intensity or type.
Pansexual people display sexual, emotional, and romantic attraction toward individuals irrespective of their sex or gender identity. Pansexual individuals describe their attraction as “gender blind” because they do not consider gender when choosing whom to be attracted to. Asexuality represents an umbrella term that describes people who face different degrees of sexual attraction or no attraction at all.
The LGBTQ acronym unites numerous gender and sexual identities that have previously experienced social exclusion. The acronym includes lesbian, gay, bisexual, transgender, and queer/questioning people who are aged 23 and above. The LGBTQ+ acronym with a plus sign is frequently used to include intersex, asexual, and pansexual individuals in the community.
What Workplace Discrimination Based on Sexual Orientation Constitutes
Federal and California laws make it illegal to discriminate against employees based on their sexual orientation. At the federal level, Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e) is the primary legal framework. The original text of Title VII banned racial and religious discrimination and sexual and national origin discrimination.
You face disparate treatment when your employer subjects you to inferior treatment or different treatment in employment matters based on your actual or perceived sexual orientation. It is illegal for employers to make employment decisions about hiring, firing, promoting, and compensating employees, benefits packages, and work assignments through discriminatory practices.
Unwanted sexual orientation-based conduct that reaches an extent where it creates an abusive work environment qualifies as harassment under Title VII. Workplace sexual orientation discrimination involves offensive jokes, slurs, stereotypes, and physical actions. Employees face retaliation when their employer takes adverse action due to reporting sexual orientation discrimination, opposing discriminatory practices, or engaging in proceedings about such discrimination.
The law also recognizes perceived discrimination in cases involving sexual orientation. Discrimination occurs based on actual sexual orientation status or employer misconceptions about employees’ sexual orientation. Employees receive protection from discrimination, which occurs because of their relationship with LGBTQ+ community members. The law protects workers because discriminatory actions can emerge from incorrect assumptions or biased perspectives, even if these beliefs prove false.
The provisions of Title VII extend harassment protection to supervisors, co-workers, and non-employees, including clients and customers. Employers will face legal responsibility for the discriminatory behavior of their employees when they should have known about the harassment and did not implement proper corrective actions. Employers are responsible for establishing discrimination-free workplaces where harassment does not occur by acting against all workers in their environment.
Examples of Sexual Orientation Discrimination in Employment
Sexual orientation discrimination appears during different stages of employment through multiple expressions.
Hiring And Employment Decisions
Organizations that discriminate in their hiring process exclude qualified job candidates solely because they suspect the applicant has a gay, lesbian, bisexual, or heterosexual orientation.
An employee faces wrongful termination at the moment their employer discovers their same-sex relationship or transgender status. The practice of denying promotions to LGBTQ+ employees who meet qualification standards and the practice of assigning unfavorable work duties to qualified workers based on sexual orientation or perceived sexual orientation both constitute discrimination.
A job interview question that probes for sexual orientation violates basic professional ethics because such inquiries suggest discriminatory motives. Employers sometimes unlawfully prevent LGBTQ+ workers from taking positions that interact with customers when they base their decisions on misconceptions about the community.
Unequal Pay And Benefits
Organizations discriminate against LGBTQ+ staff by offering lower compensation than what heterosexual workers receive for equivalent work and by refusing to provide health benefits to same-sex partners and spouses. The practice of withholding benefits from same-sex partners was common before legal changes occurred.
Discriminatory practices that provide different levels of parental leave between heterosexual and same-sex couples qualify as discriminatory behavior. Financial harm to LGBTQ+ employees, along with relationship and contribution devaluation resulting from these discriminatory practices.
Hostile Work Environment
The existence of harassment, together with discriminatory behaviors, creates hostile work environments. Workplace discrimination against LGBTQ+ people occurs through various actions that include
- Telling offensive jokes and slurs
- Spreading sexual orientation rumors about employees
- Persistent misgendering of transgender staff members
- Continuing to use their former names
A hostile work environment manifests through excluding employees from social gatherings, team activities, and significant meetings while displaying offensive materials. These behaviors create severe adverse effects on workers’ mental and emotional states.
Retaliation For Reporting Discrimination
It is against the law to retaliate against someone who reports discrimination, which can manifest through different actions. The retaliation of employees who report discrimination includes:
- Immediate termination
- Demotions
- Undesirable reassignments
- Unjust negative evaluations
- Reduced compensation
- Work exclusion from activities and opportunities
Fear of retaliation stops people from filing discrimination reports because they believe such reports could lead to negative consequences.
Denial Of Training Or Advancement Opportunities
A discriminatory practice exists when an organization denies employees training opportunities and advancement possibilities. The discriminatory practice includes refusing to choose an LGBTQ+ employee for training that leads to career progression and providing unequal professional development access, as well as selecting non-LGBTQ+ candidates with lesser qualifications for promotions instead of qualified LGBTQ+ employees.
Who Is Protected Under Federal and California Law?
- Federal Protections for LGBTQ+ Employees
Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate against employees based on race, color, religion, sex, and national origin, according to Section 29. The landmark Supreme Court ruling in Bostock v. Clayton County (2020) (explained below) confirmed that sex discrimination bans in Title VII extend to include discrimination against sexual orientation and gender identity.
The Supreme Court justified its decision by recognizing that discrimination against homosexual or transgender individuals requires an assessment of their sex. Under this federal protection, LGBTQ+ employees can receive protection from unfair discrimination and job termination across all parts of the United States.
The Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces Title VII and other workplace discrimination laws. The EEOC conducts investigations of sexual orientation and gender identity discrimination allegations before attempting to mediate disputes and holds the power to file legal action on behalf of victims of discrimination.
The EEOC established that workers must receive identical facility access, including bathrooms, showers, and locker rooms corresponding to their gender identity.
The protection against retaliation exists under 42 U.S.C. 2000e-3(a) within federal law. Employers must refrain from taking adverse actions against their staff who either challenge practices that break Title VII laws or participate in any Title VII investigation or hearing.
The protection ensures employees can report discrimination without fear of retaliation, even when they initially made a valid discrimination claim. Still, it gets dismissed if their belief about the discrimination was reasonable.
- California State Protections
The Fair Employment and Housing Act (FEHA) (Gov. Code 12940) protects LGBTQ+ employees in California beyond the protections provided by federal law. FEHA protects employees from discrimination because of sexual orientation and gender identity and expression at every stage of employment, from hiring to termination to promotion to wage determination and work benefits. FEHA protects employees at public and private organizations with five or more workers, while Title VII requires 15 employees for federal coverage.
California Government Code 12921 declares protection against sexual orientation discrimination in employment opportunities as a fundamental civil right within the state. California explicitly protects workers from discrimination that stems from incorrect perceptions of their sexual orientation.
The legal prohibition against discrimination includes situations where employers make false assumptions about sexual orientation, thus protecting individuals who do not reveal their LGBTQ+ identity or those incorrectly identified as LGBTQ+.
California Labor Code 1102.5 establishes strong legal protections for employees who report law violations through its discrimination provisions. The statute shields workers from workplace reprisals when they report sexual orientation discrimination to their supervisors, HR departments, or external agencies, including CRD and EEOC.
The FEHA provides extensive employee rights protection to workers within public and private organizations while extending its coverage to more employers because it has a lower staff requirement than federal regulations. Additionally, California law expressly guarantees the right for employees to use restrooms that align with their gender identity.
Case Laws
- Hively v. Ivy Tech Community College
In Hively v. Ivy Tech Community College (2017), the Seventh Circuit Court of Appeals ruled that workplace discrimination based on sexual orientation violates Title VII of the Civil Rights Act of 1964.
Kimberly Hively, an openly lesbian adjunct professor at Ivy Tech Community College in Indiana, alleged that the school repeatedly denied her promotions and eventually did not renew her contract because of her sexual orientation. When she sued under Title VII, the district court dismissed her case, reasoning that sexual orientation was not a protected category under the law.
However, in an 8-3 en banc decision, the Seventh Circuit reversed this ruling, holding that discrimination based on sexual orientation is inherently a form of sex discrimination. The court reasoned that if Hively had been a man in a relationship with a woman, she would not have faced the same treatment, making the discrimination based on sex. This decision was groundbreaking, as was the first time a federal appellate court explicitly recognized sexual orientation discrimination as unlawful under Title VII.
Hively paved the way for future cases, ultimately influencing the Supreme Court’s ruling in Bostock v. Clayton County (2020), which confirmed nationwide protections for LGBTQ+ employees under federal law.
- U.S. Supreme Court in Bostock v. Clayton County
The U.S. Supreme Court in Bostock v. Clayton County expanded the text to include discrimination based on sexual orientation and gender identity. In 2020, Clayton County established that the legal ban on sex discrimination extends to both sexual orientation and gender identity discrimination.
The Supreme Court established that discrimination targeting homosexual or transgender individuals requires considering their sex status. The federal protection of LGBTQ+ individuals from employment discrimination expanded through this landmark ruling, which established their protection under current civil rights laws across the nation.
Preventing Sexual Orientation Discrimination in the Workplace
Employer Obligations Under California and Federal Law
Employers operating within California are obligated to stop sexual orientation discrimination in their workplaces. Employers with five or more employees must follow Mandatory Anti-Discrimination Policies per Gov. Code 12950.1. All written policies should include clauses that prohibit harassment, discrimination, and retaliation. They should also explicitly mention sexual harassment and harassment based on gender identity, gender expression, and sexual orientation.
All new and existing employees must receive these policies according to the law. Employers should display fresh signage that confirms the protection of transgender and gender-nonconforming staff members.
All workplaces in California must provide training to their employees. Under Senate Bill 396, employers who have at least 50 employees must deliver two hours of training about harassment from sexual orientation and gender identity and gender expression to their supervisors every two years. Employees must receive training through trainers who possess expertise in these domains and should incorporate practical examples, according to Senate Bill 396.
Employers with five or more employees must deliver at least one hour of sexual harassment and abusive conduct prevention training to non-supervisory staff members beginning January 1, 2021, and repeating every two years.
Employers must establish specific reporting and complaint procedures that represent a fundamental obligation under the law. All reporting procedures must be easily reachable and guarantee complete confidentiality while protecting employees from work-based retaliation.
Employers must create detailed procedures for complaint reporting, investigation processes, and resolution steps that mandate qualified personnel to conduct fair investigations. The recommended best practice includes multiple reporting options that provide employees access to HR personnel and their supervisors and confidential, anonymous channels.
Employee Rights and Steps to Take
If you face sexual orientation discrimination, you possess various rights alongside specific procedures for action. The first step to handling discrimination involves directly notifying the offender about their unacceptable conduct, but only when you feel secure enough.
All discriminatory incidents need complete documentation, including dates, times, specific details, names of involved parties, and witnesses. Preserving essential messages through email, text, and other digital records should be considered a standard practice.
You need to file a complaint with Human Resources to document discriminatory incidents at their workplace officially. The employer can conduct an investigation followed by necessary corrective measures.
You can file reports on discrimination incidents to the California Civil Rights Department (CRD) (Gov. Code 12960) within one year of the discriminatory action. The CRD makes its complaint filing process accessible through its website.
Employees who experience discrimination have the right to file a complaint with the EEOC at the federal level after 300 days from the discriminatory act in California. The EEOC website provides information about charging procedures.
You want to consult attorneys who specialize in employment law to seek civil litigation advice for your full legal rights and possible legal options.
Creating an Inclusive and Compliant Workplace
Organizations that adopt inclusive workplace policies realize significant economic and social advantages. Studies show that businesses that adopt LGBTQ-inclusive policies achieve improved employee retention and increased revenue, which results in better profitability and market value.
Implementing inclusive workplaces leads to better job satisfaction, increased employee engagement, and stronger colleague relationships. Social policies that support inclusivity create welcoming workplaces that protect all employees and empower them to succeed while improving their well-being and strengthening the workplace community.
The number of Fortune 500 companies implementing non-discrimination policies has increased substantially, and now most of these businesses include sexual orientation and gender identity in their employment discrimination policies. The number of corporate America entities implementing LGBTQ+ workplace inclusion policies continues to rise because executives understand its fundamental importance. Leading companies have adopted inclusivity as a standard practice because ethical values and proven business advantages drive this change.
Also, implementing inclusive practices positively affects workforce morale, productivity, and employee retention. Worker engagement increases when employees experience both recognition of their viewpoints and feelings of belonging, which results in higher job satisfaction and better well-being. Employee motivation rises alongside productivity when employees feel valued and belong to the organization. Organizations that focus on inclusivity achieve better employee retention because they maintain higher employee engagement, which lowers the substantial expenses linked to employee turnover.
Legal Recourse and Resources for California Employees
Workers in California who face sexual orientation discrimination at work can pursue multiple legal options while accessing help and educational materials through available resources. As the state agency responsible for investigating discrimination cases based on sexual orientation and other protected characteristics, the California Civil Rights Department (CRD) operates under its previous name, the Department of Fair Employment and Housing (DFEH).
The Equal Employment Opportunity Commission (EEOC) operates as the federal entity that enforces Title VII of the Civil Rights Act of 1964 to prohibit workplace discrimination, including sexual orientation and gender identity discrimination.
Various LGBTQ+ advocacy groups across California and nationwide help LGBTQ+ individuals who experience discrimination through their legal support and resource provision. Major LGBTQ+ advocacy organizations include the following:
- The Los Angeles LGBT Center
- Equality California
- The National Center for Lesbian Rights
- The Trevor Project
- The American Civil Liberties Union (ACLU) LGBTQ Rights Project
Consulting a sexual harassment attorney becomes vital for people who want to understand their legal rights and available options, including the possibility of filing a lawsuit. The Fair Employment and Housing Act (Gov. Code 12965) enables California workers who experience sexual orientation discrimination to file civil lawsuits against their employers after completing administrative processes with CRD.
Contact a Sexual Harassment Attorney Near Me
California has implemented workplace protections for sexual orientation discrimination that surpass the standards set by federal regulations to uphold fairness and equality. Employers must fulfill both their moral and legal obligations to create workplaces free from prejudice that ensure all staff members receive proper dignity and respect regardless of their sexual orientation.
Discrimination continues in the workplace and causes employees to suffer from mistreatment, unjustified dismissals, harassment, and retaliatory actions. You can exercise legal options together with your rights when workplace discrimination occurs to you.
Seeking professional legal advice is essential to learning about your rights because it helps make informed decisions regarding your case. The expertise of an experienced employment attorney allows them to evaluate your case and provide legal guidance while fighting for your rightful justice.
At Empower Sexual Harassment Attorneys, we stand devoted to defending the rights of employees in San Diego. Contact our law office at 619-604-3027 for a complimentary consultation and assistance in your workplace discrimination case.
