Your sexual orientation and gender identity have no bearing on your work performance and should never be an issue in the workplace. Unfortunately, workplace discrimination is still a major issue in California and the United States. If you have experienced LGBTQIA+ sexual harassment, it is important that you understand your legal rights.
What Constitutes LGBTQ+ Sexual Harassment?
Sexual harassment is inappropriate and unlawful, including harassment and discrimination based on gender identity and sexual preference Unfortunately, many employers do not take harassment seriously and do not take appropriate measures to prevent, investigate, and stop it from happening. In some cases, company leadership may be encouraging the behavior. Harassment and discrimination come in many forms, so make sure to discuss your specific situation with a qualified attorney. Some examples of LGBTQ+ harassment and discrimination include the following:
- Refusing to hire a person because of their sexual orientation or gender identity;
- Derogatory comments, jokes, or slurs regarding the LGBTQIA+ community, generally, or about a specific individual identifying as LGBTQIA+;
- Overlooking someone for promotion or career advancement because they identify as or are believed to be LGBTQIA+;
- Pressuring employees to discuss or reveal their sexual orientation or gender identity;
- Using the wrong gender, pronoun, or name to refer to a person (misgendering or deadnaming);
- Excluding the employee from team meetings, projects or social events.
There are a lot of different forms that harassment and discrimination can take. This list only includes some of the more common examples. Retaliation against an employee who reports harassment or discrimination is also illegal and there are safeguards intended to protect those who have the courage to stand up for their rights.
Which Laws Protect Against LGBTQIA+ Harassment and Discrimination?
There are many laws and regulations that may apply, so you should consult a qualified attorney about your specific situation. For example, compared to many other states, California has taken an active stance on protecting LGBTQIA+ rights in the workplace. California’s protections against discrimination apply to businesses with at least five employees, and anti-harassment laws apply even if you are the only employee. In most cases, there are no religious exemptions except for actual religious institutions such as churches or mosques.
California Fair Employment and Housing Act (FEHA)
The FEHA explicitly prohibits discrimination and harassment based on sex, sexual orientation, gender identity, gender expression, and transgender status. This includes perceived sexual orientation.
California Equal Pay Act
The California Equal Pay Act mandates employers to provide equal pay for substantially similar work, regardless of sex, gender identity, gender expression, or sexual orientation.
Title VII of the Civil Rights Act of 1964
Title VII prohibits discrimination in the workplace on the basis of sex, which includes gender identity, transgender status, and nonconformity with gender stereotypes. The law prohibits discrimination in recruitment, hiring, assignments, promotions, pay, and benefits.
Statistics on LGBTQ+ Sexual Harassment in the Workplace
Though countless incidences go unreported, several studies have attempted to understand the scope of LGBTQIA+ sexual harassment in the U.S. workplace. One 2019 survey found that 68% of LGBT respondents had been sexually harassed at work, but only one-third of them reported it to their employer. A 2022 report found that 54.4% of LGBT participants experienced harassment at some point in their lives, with most prevalence among younger adults.
A May of 2021 survey of 935 LGBT adults revealed:
- Over 8 million workers in the U.S. identify as LGBT,
- 46% of LGBT workers have experienced unfair treatment at work at some point in their lives,
- 43.9% of transgender employees reported not being hired because of their LGBT status which is twice as many when compared to LGB employees (21.5%),
- 57% reported that the unfair treatment was motivated by religious beliefs,
- 38% reported experiencing harassment at work,
- 50% of LGBT employees are not out to their current supervisor,
- 26% are not out to any co-workers, and
- 34% of LGBT employees have left a job due to treatment by their employer.
One in five (20.8%) LGBT employees who took the survey reported experiencing physical harassment because of their sexual orientation or gender identity including being “punched,” “hit,” and ‘beaten up” in the workplace. It is important to note that in many cases unwanted physical contact should never be tolerated in the workplace. No one should ever have to fear physical, mental, or emotional trauma in the workplace. Your attorney can help you determine if you also have a valid claim for assault.
You May be Entitled to Compensation
Every case is different, so it is important to speak with a qualified attorney about your potential claims and the types of damages that may apply to your circumstances. Depending on the situation, a successful harassment or discrimination case may entitle the employee to payment for a variety of damages. For example, back pay may be awarded in cases where the employee was terminated or could not keep working due to the hostile environment. Front pay could be awarded if the employee was unable to obtain a new position at the same wage.
The mental and emotional effects of experiencing harassment or discrimination, such as emotional distress, anxiety, and post-traumatic stress, are also compensable. Other remedies could include the following:
- Punitive damages,
- Attorney’s fees and court costs,
- Hiring or reinstatement,
- Out-of-pocket expenses,
- Reasonable accommodations, and
- Employer policy changes.
Your attorney can help you determine the legal remedies that are most appropriate for your individual case.
It is important to hold employers accountable for their actions and the actions they allow in the workplace. The experienced team at Boucher LLP understands the intricacies of sexual discrimination and harassment laws in California. We are here to help you assert your rights and ensure you are provided equal opportunities in the workplace. Contact us to schedule a case consultation.