Sexual Orientation Discrimination

We face many challenges in the workplace. Members of the LGBTQ+ community often have even more obstacles to overcome. Increased social awareness has improved the situation, but many still must deal with discrimination from bosses and coworkers. This unfair treatment can lead to low morale and a hostile work environment. Federal, state, and local governments are stepping up to address discrimination in employment.

This article discusses sexual orientation discrimination at work. Sexual orientation and gender identity discrimination is an emerging area of law. Local and state laws vary, and federal laws and regulations are changing and subject to judicial interpretation. You should contact an employment lawyer in your area for help with your unique situation.

What Is Sexual Orientation Discrimination?

Sexual orientation discrimination is discrimination based on your actual or perceived sexual orientation. Perceived sexual orientation is how others perceive your sexual orientation. Discrimination can happen because of that perception, no matter if it’s correct, whether you’re:

• Lesbian
• Gay
• Bisexual
• Asexual
• Pansexual
• Heterosexual

Existing discrimination laws may not name sexual orientation as a protected class. But in 2020, the U.S. Supreme Court ruled that sexual orientation is illegal under existing sex discrimination laws. The Supreme Court ruling also includes gender identity discrimination.

State and federal laws make sexual orientation discrimination and gender identity discrimination at work illegal. The law applies to all aspects of employment, including:

• Hiring
• Firing
• Pay
• Promotions
• Job assignments

Workplace discrimination generally involves an adverse employment action or employment decision. So, it’s discriminatory if your boss fires you because you’re a transgender woman. Another example is an employer not hiring you because you have a same-sex partner.

Sexual Orientation and Gender Identity Harassment

Harassment from managers, coworkers, or vendors that creates a hostile work environment is also illegal. Harassment includes derogatory remarks about your sexual orientation or gender identity. For example, offensive jokes about your transgender status can be harassment.

Accidentally getting your preferred name or pronouns wrong is not discriminatory. But repeatedly using the wrong name or pronoun can create a hostile work environment.

Customer Preferences

Employers can’t discriminate against LGBTQ+ employees because of customer or client preferences. For example, an employer can’t refuse to hire you because customers may not want to work with you.

Your employer can’t segregate you based on customer preferences. For example, your boss can’t assign you to work in the back room because of your sexual orientation. Your boss also can’t restrict you from dressing consistently with your gender identity.

Bathrooms, Showers, and Locker Rooms

Your employer can have separate facilities for men and women. Facilities include bathrooms, showers, and locker rooms. They may also have unisex or single-use facilities. However, your employer must allow equal access to these spaces. That means your boss must let you use the facilities corresponding to your gender identity.

Who Is Covered by Sexual Orientation Discrimination Laws?

The primary federal sex-based discrimination law applies to employers with 15 or more employees. It applies to all employees and job applicants. Full-time, part-time, and temporary workers are included. The law does not cover independent contractors.

Some state laws expand on these protections. For example, they may cover smaller employers.

How Do I Report Discrimination?

Most employers have procedures for reporting discrimination to their human resources department (HR). But you may not be comfortable reporting incidents to HR. For example, you may think your HR is complicit in the discrimination. In that case, you can file a complaint with the federal government. You may also be able to file with a state or local government agency. A local employment attorney can explain your options.

How Do I Prove Discrimination?

Winning a sexual orientation discrimination claim can be difficult. Taking the following steps can improve your chances:

• Summarize any incidents of sexual orientation discrimination you experience, including the date, time, location, and people involved.
• Ask for the name and contact information of anyone who saw the incident(s).
• Gather your employment records, including your performance evaluations, along with emails, memos, and documents showing discrimination.
• Compare your treatment to coworkers’ treatment. Look for preferential treatment for people with a different sexual orientation or gender identity from yours.

What Can I Win in a Discrimination Case?

The damages available in a sexual orientation discrimination case include the following:

• Back pay for lost wages if you were fired or weren’t promoted.
• Front pay to compensate you for future lost wages. You may win front pay in situations where reinstatement is impossible. Front pay covers from the end of the case to when you find a new job.
• Compensatory damages pay you for injuries you suffered. Injuries include emotional distress and mental anguish.
• Punitive damages to punish your employer for egregious discriminatory acts.
• Reimbursement for attorney’s fees and legal costs.

Contact an Employment Lawyer for Help With Your Case

Your employer can’t discriminate on the basis of sex. Sex discrimination includes discrimination on the basis of sexual orientation and gender identity. Discrimination cases can be complex. Contact an employment lawyer if you’re the victim of discrimination. They can explain the laws and give you advice about your situation.