What Are My Rights as an LGBTQ+ Worker?

What Are My Rights as an LGBTQ+ Worker?

Whether you know, love, or are someone who identifies as LGBTQ+, everyone deserves a workplace where they feel seen and respected. Various safeguards exist at both the national and state levels to ensure this is a reality for all workers, regardless of race, age, disability, religion, sexual orientation, or gender identity.

WHAT DOES THE LAW SAY ABOUT LGBTQ+ DISCRIMINATION AND HARASSMENT?

California’s Fair Employment and Housing Act (“FEHA”) prohibits discrimination and harassment based on a person’s gender, gender identity (including gender non-conforming and non-binary identities), gender expression and/or sexual orientation, among other categories. Cal. Gov. Code § 12940 et seq. These laws also apply to any worker who decides to come out or transition while on the job. Harassment is prohibited in all workplaces, and the FEHA’s anti-discrimination provisions apply to California employers with five or more employees. Importantly, these laws also prohibit discrimination and harassment based on an employer’s misperception of an employee’s sexual orientation or gender identity.

Harassment and discrimination based on sexual orientation or gender identity and expression can come in many different forms, but may include:

• asking about sexual orientation or gender identity as an interview question or as a condition of employment;
• addressing an employee by the wrong name and pronoun after being corrected;
• harassing comments regarding the employee’s sexual orientation or gender identity;
• transferring an employee to a less-favorable shift or assigning the employee less-favorable work;
• forcing an employee to use a restroom that does not correspond to their gender identity;
• paying a lower wage or denial of benefits that other employees receive.

It’s important to note that not every instance of inappropriate workplace behavior is illegal harassment. According to the law, the behavior must be “severe or pervasive.” Under the law, this means the harassment interferes with your ability to complete your job and is offensive such that a reasonable person would consider the work environment to be hostile. That said, depending on the circumstances, one homophobic or transphobic slur or comment could be enough to constitute illegal harassment.

Nationally, the U.S. Supreme Court recently confirmed that Federal law also protects workers against discrimination on account of their sexual orientation or transgender status. In Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020), the Court held that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second,” thus cementing Federal protections for LGBTQ+ workers.

WHAT CAN I DO ABOUT IT?

Employees facing discrimination or harassment because of their actual or perceived LGBTQ+ status should contact an attorney immediately to discuss their rights and options. It is also important to keep all records of the harassing or discriminatory conduct. Start journaling any incidents at work that involve harassment or discrimination – note dates, times, and any witnesses to these occurrences. Also, keep copies of any and all documents related to the harassing or discriminatory behavior.

If you think you’ve been subjected to workplace discrimination or harassment because of your sexual orientation or gender identity, we’re here to help. Contact the Law Office of Jeannette A. Vaccaro at (415) 444-5800 or online for a free consultation appointment.