Many workers want a workplace that is safe and values everyone, regardless of their sexual orientation. Sadly, not all of this is reality. Sexual orientation discrimination remains, and it is often subtle but also overt harassment. California has laws that prohibit discrimination based on gender and sexual orientation in the workplace. The fight against workplace discrimination in California is a legal movement to promote dignity, respect, and equality. You should hire a knowledgeable attorney to stand up for your rights, demand accountability, and create a change if you or a loved one is a victim.

If you or someone you know is being sexually harassed in the workplace because of sexual orientation, Empower Sexual Harassment Attorneys is here for a confidential consultation. We know that sexual orientation discrimination at work is a challenging experience, and we can help you. Our experienced lawyers, firmly committed to justice, will assist you in handling these challenges and offer unmatched legal representation across the San Diego area.

Understanding Sexual Orientation Discrimination

Sexual orientation discrimination is the act of mistreating an employee or worker because of their actual or perceived sexual orientation. In California, the law protects all employees from mistreatment based on their sexual orientation, whether they identify as lesbian, gay, bisexual, transgender, heterosexual, or otherwise.

The law also tackles discrimination against a person based on their orientation, regardless of the basis of the discrimination. Discrimination can include how people are hired, promoted, paid differently, or harassed in the workplace, resulting in a hostile, unequal work environment.

California’s Fair Employment and Housing Act (FEHA) makes it illegal for an employer to discriminate against an employee because of their sexual orientation. The law extends broadly to include refusal to hire, denial of a promotion, or harassment based on sexual orientation or identity. These laws also mean employers must ensure that their policies and practices are inclusive and free of bias in their workspaces.

Common Forms of Discrimination

Sexual orientation discrimination in the workplace can be in many forms, all of which undermine the rights and dignity of employees. In California, it is illegal to take such actions under the Fair Employment and Housing Act (FEHA), which aims to prevent all workers from receiving unequal treatment. The different forms of sexual orientation discrimination are:

  • Hiring and Promotion Bias

Hiring and promotion are one of the most insidious forms of discrimination. An employer may prefer someone who fits certain stereotypes or disqualify someone who is gay or lesbian. This is similar to why employees may be overlooked for promotions or professional development opportunities because of their identity.

These biases are subtle, hidden behind seemingly neutral choices, and are hard to prove. However, California law outlaws such practices, making employers liable if bias determines who becomes hired.

  • Workplace Harassment

Sexual orientation harassment hurts your ability to do your job because it creates a toxic work environment. Harassment includes:

  • Derogatory comments.
  • Offensive jokes.
  • Hostile actions related to your orientation or identity.

Harassment in California must not come from your direct supervisor to be considered illegal. It can be from coworkers, clients, or others in the workplace. FEHA prohibits harassment that creates a hostile environment, and such harassment may also violate federal protections under Title VII of the Civil Rights Act of 1964.

  • Unequal Treatment

Unequal treatment occurs when employers set different expectations or standards for employees based on their sexual orientation. This could mean assigning less desirable tasks, fewer benefits, or denying the same workplace privileges as those given to others. Such practices are unethical and unlawful and must be addressed immediately and rectified. Often, these disparities reflect deep-seated prejudices that work against workplace inclusivity and productivity.

  • Retaliation

Adverse action on the part of an employer against an employee for reporting discrimination or harassment is considered retaliation. Examples include:

  • Unjust terminations.
  • Demotion.
  • Punitive work assignments to intimidate or silence you.

California law prohibits explicit retaliation; therefore, employers should have a safe means for employees to report misconduct. Retaliatory actions diminish workplace fairness and can result in severe legal consequences for the employer.

Federal and California Laws Regarding Sexual Orientation Discrimination

Federal Protections

Title VII of the Civil Rights Act of 1964 is the primary provision under federal law for protecting individuals from sexual orientation discrimination. In the landmark 2020 Supreme Court case Bostock v. Clayton County further clarified that discrimination based on sexual orientation or gender identity is prohibited under the prohibition of discrimination ‘because of sex.’”

The decision ascertains that an employer cannot discriminate against employees because of their sexual orientation or gender identity without violating Title VII. This interpretation offers LGBTQ+ people federal protection against discriminatory practices like:

  • Wrongful termination.
  • Unequal pay.
  • Harassment.

The Equal Employment Opportunity Commission (EEOC) enforces these protections. The EEOC investigates claims of workplace discrimination and offers guidance to employers about what to do to comply with federal law. If you think you have been discriminated against, you may file a complaint with the EEOC. However, Title VII applies to employers with 15 or more employees.

California State Protections

California legislation prohibits discrimination, harassment, or retaliation based on sexual orientation, gender identity, or gender expression against employees. California’s FEHA covers employers with five or more employees, and its anti-harassment provisions apply to all employers, regardless of size. Employers are also expected to implement preventative measures, including anti-harassment training and policies, to make their workplace inclusive.

California law includes explicitly non-binary and gender non-conforming employees. It protects their right to use facilities by gender identity and to be called by their correct name and pronouns.

Additionally, California requires employer-provided health plans to cover gender-affirming care, establishing the state as a leader in LGBTQ+ workplace rights. California employees who experience discrimination may file complaints with the Civil Rights Department, formerly the Department of Fair Employment and Housing.

Supreme Court Ruling on Sexual Orientation and Gender Identity-Based Discrimination

As mentioned above, in the Bostock v. Clayton County landmark case, Clayton County (2020) finalized protections from discrimination against employees based on sexual orientation and gender identity. The Court held that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of sex,” is intended to cover sexual orientation and gender identity. Currently, it is an offense to subject LGBTQ+ employees to adverse actions, such as termination, harassment, and discriminatory treatment in the workplace.

Before the Supreme Court’s ruling, protections for LGBTQ+ employees were non-existent, and federal agencies were silent on sexual orientation and gender identity. The ruling aligned federal protections and allowed employees to bring sexual discrimination claims under Title VII, regardless of where in the United States they reside.

The landmark case also prompted discussions regarding the application of anti-discrimination principles to housing, education, and public accommodations. Thanks to the case, discriminating against anybody on the basis of their identity is an offense. This legal provision has created a precedent for wider societal changes​.

Impact of Workplace Sexual Orientation Discrimination

Sexual orientation discrimination in the workplace can harm both the employee and the employer. Consequently, the consequences often affect employees’ mental health, physical well-being, and personal relationships. This discrimination creates a culture of exclusion and inequality where workers may feel devalued or alienated because of their gender identity or sexual orientation.

Another common effect is the psychological toll this type of discrimination takes on employees. Unfair treatment of LGBTQ workers, such as harassment, exclusion, or being overlooked for promotions, can heighten anxiety, depression, and isolation. A survey of LGBTQ workers by the UCLA School of Law’s Williams Institute found that 46 percent had experienced discrimination at some point in their careers. That included workplace harassment, exclusion from professional opportunities, and denial of promotions on the basis of sexual orientation or gender identity.

These mental health issues can also manifest themselves as physical symptoms and workplace stress can cause physical health problems. For example, there are links between fatigue, migraines, and digestive disorders, among other things, to unsupportive work environments.

The repercussions of workplace discrimination are just the same for businesses. Organizations that do not create inclusive environments are often struggling with lower employee engagement and retention. There could be higher turnover rates for LGBTQ workers due to a reduced job commitment or leaving the organization altogether.

Additionally, businesses that do not support LGBTQ rights might struggle to attract diverse talent, which is significantly important in modern, competitive markets. These negative perceptions can tarnish a company’s reputation and reduce customer loyalty and, therefore, profitability.

Protecting Yourself in the Workplace

To protect yourself from sexual orientation discrimination in the workplace, you need to know your rights and take proactive steps. Start by learning your company’s policies around equal opportunity and anti-harassment. If you are a union member, review your contract to ascertain that it contains additional protections or resources to deal with sexual orientation discrimination at the workplace.

The Fair Employment and Housing Act (FEHA) allows you to act against California’s discriminatory practices. This act requires employers to create a work environment free of discrimination. So, you must understand how this act applies to your situation.

A solid support system can also be in the form of networking in the workplace. Allies can help you navigate these challenging topics, whether you are talking to a colleague or a designated advocate.

Speaking up is essential if you are discriminated against. If you find yourself in these situations, speak up with a clear idea of your rights and a desire to seek solutions that are in line with workplace policy and state laws.

Steps to Take if You Experience Discrimination

  • Document any experience considered workplace discrimination. Note down every incident, including dates, times, and descriptions of what occurred. If you can, note any witnesses who can corroborate your account. Also, collect any relevant communications, such as emails or messages substantiating your claims. Documenting everything helps you build a stronger case and have a higher chance of achieving a positive case outcome.
  • Report the discrimination to your supervisor or human resources department. These channels are set up to help resolve and address these kinds of issues. If the perpetrator is your supervisor, this is escalated to higher management or a designated HR representative. Communication in itself should be transparent so that you know your grievances are not only understood but acted upon in the right manner.
  • You should seek legal counsel if your situation is challenging. If you are facing discrimination, hiring an experienced sexual harassment lawyer can help you file complaints with relevant agencies and pursue legal action. Knowing your rights and having a lawyer helps you obtain justice.

Taking Action Against Sexual Orientation Discrimination

If internal reporting procedures cannot offer a positive resolution, consider filing a complaint with the appropriate government agency.

In California, there are two ways for employees to address discrimination:

  1. The Equal Employment Opportunity Commission (EEOC) at the federal level.
  2. The Department of Fair Employment and Housing (DFEH) at the state level.

Each pathway entails a structured process for investigating and resolving discrimination claims. Filing with the DFEH or EEOC formally starts a process to have your employer hold up their end of the bargain, change things, and protect your workplace rights.

Filing with the Department of Fair Employment and Housing (DFEH)

The DFEH enforces the Fair Employment and Housing Act (FEHA), which prohibits sexual orientation discrimination and is enforced in California. You can file a complaint online, by mail, or by phone.

First, you fill out an intake form in which you explain what happened to earn your claim. This form is the foundation of your case, so you must include all dates, descriptions, and supporting documents.

Once you file a claim, the DFEH investigates whether it has enough evidence to prove your allegations. They are thorough and include interviews with witnesses and a review of workplace policies. The DFEH can try to mediate your case or bring legal action if it finds that your claim has merit. If successful, mediation could achieve financial compensation, a change in your company’s policies, or a combination of the two.

The DFEH uses California’s strict anti-discrimination laws as an advocate to hold people accountable. Being a California resident means you have access to state-specific protections that exceed federal standards, so using this resource is important.

Filing with the Equal Employment Opportunity Commission (EEOC)

The EEOC enforces Title VII of the Civil Rights Act of 1964, which prohibits discrimination on many grounds, including sexual orientation, at the federal level. When you file a charge of discrimination with the EEOC, you submit a formal statement of your complaint. You can file by mail, in person, or online in the EEOC portal. The process is specific, meaning your charge needs to specify the discriminatory acts and the parties involved.

After submitting the claim, the EEOC will investigate and may interview witnesses, review evidence, and determine if your employer flouted anti-discrimination laws. A dispute is often resolved quickly and amicably through mediation services. If mediation doesn’t work, the EEOC may bring a lawsuit on your behalf, or it may send you a right-to-sue letter that lets you pursue a lawsuit yourself.

Potential Remedies for Discrimination

If you experience sexual orientation discrimination in the workplace, you may be entitled to various remedies. These put you back in the position you were in before your harm occurred and prevent similar harm in the future. These remedies aim to compensate you, rectify systemic issues, and restore fairness in the workplace.

Financial Compensation

Damages for lost wages, emotional distress, and related expenses may be awarded in courts or settlement agreements. If you were fired without cause, compensation could include back pay for the money you lost in earnings and front pay for what you would have earned in the future. Emotional distress damages try to capture the psychological impact of living with discrimination, including anxiety, humiliation, and diminished self-esteem.

In addition, the court may award punitive damages if your employer’s conduct was especially egregious. These damages punish the employer and deter future similar actions.

Policy Changes

Successful claims often result in systemic workplace reforms. Employers may be required to amend their anti-discrimination policies, establish more clearly defined reporting mechanisms and provide regular staff and management training. These changes go a long way because they address the root causes of sexual discrimination and help make the working environment more inclusive.

For example, if an employer violates California’s Fair Employment and Housing Act (FEHA), they could undergo extensive diversity training or devise more rigorous oversight processes to prevent future incidents of employee discrimination.

Your changes protect current and future employees from having to go through what you have.  These remedies ensure accountability at the institutional level and make for a safer and more equitable work environment.

Job Reinstatement

On some occasions, those who were wrongfully terminated because of sexual discrimination may be reinstated to their previous posts. Job reinstatement is both a practical and a symbolic remedy, a declaration that you belong in the workplace and that you have lost no career opportunity.

In cases where your dismissal led to reputational harm or stalled professional advancement, reinstatement goes a long way. It shows that the employer is obliged to correct the wrong they have done and reintegrate you without prejudice. However, this is a remedy that often requires the dynamics of the workplace and whether you can go back to your position without further conflict.

Benefits of An Open Workplace

An open workplace is an environment for employees that is both employee-centric and people-centric. Here, employees feel valued and respected and make their authentic selves available at work. It achieves real and tangible benefits to both employees and employers.  An open and inclusive workplace fosters better interpersonal relationships, increases productivity, and contributes to an organization’s success.

If employees feel secure expressing their identity, including sexual orientation, creativity and collaboration thrive. When you are confident that your voice will be heard and respected, you are more likely to offer innovative ideas and solutions. An inclusive workplace also fosters an open communication culture where team members discuss challenges and use different perspectives to develop solutions.

From a business standpoint, inclusivity is not a social obligation but a competitive advantage. Diverse workplaces achieve greater profitability, innovation, and employee satisfaction than homogeneous ones. Clients and consumers alike want organizations that uphold the values of equity and diversity. Employers can cultivate an inclusive workplace to increase their brand image and attract exquisite talent.

An open workplace reduces the risks and costs of discrimination claims and employee turnover. Discrimination and harassment lead to dissatisfaction and burnout. In return, these cost organizations a lot of time and money. However, if employees feel safe and supported, they remain loyal and motivated. As a result, the employer achieves a higher retention rate and long-term organizational stability.

Inclusivity in the workplace brings change toward equality and respect in a broader societal sense. It shows that diversity and openness are achievable and good for your workplace. Being open as an employee or employer fosters personal and professional growth. It also promotes a culture of mutual respect.

Find a San Diego Sexual Harassment Attorney Near Me

Fighting sexual orientation discrimination creates an environment of equality and respect in your workplace. When you stand up against discrimination and harassment, you assert your rights and open the door to others to stand up, too. To fight against such discrimination, courage, knowledge of what to do, and, importantly, the support of an experienced sexual harassment attorney is crucial.

You want to retain an attorney dedicated to being by your side every step of the way. At Empower Sexual Harassment Attorneys in San Diego, we will work together to ensure your voice is heard, your rights are protected, and the workplace is safer. We help employees like you pursue workplace discrimination cases. We protect your rights and fight for the justice you deserve, from initial consultation to legal representation.

If you are ready to fight sexual orientation discrimination or have a question about your legal options, contact us. Call us today at 619-800-7245 if you are in the San Diego area.