The Law Office of Richard Vaznaugh

Sexual Orientation Discrimination

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Sexual orientation discrimination in the workplace occurs when an employee is subjected to negative employment action, harassment, or denial of certain benefits because of their sexual orientation, or the sexual orientation of someone to whom they are close. Sexual orientation discrimination has been part of the workplace in America for decades. While federal, state and local laws, as well as increased social awareness have improved the situation dramatically, many people in the LGBTQ+ community still face obstacles at work related to being gay, bisexual, asexual, or pansexual. It is important for employees to have the right information about what constitutes discrimination based on sexual orientation, what constitutes harassment, and how sexual orientation discrimination can tie in with other prohibited forms of discrimination like, sex, disability, gender identity, and marital status.

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Sexual orientation discrimination can affect your job status, your working environment, your health benefits, and a host of other issues in the workplace. The law in this area is changing rapidly for the better. If you feel you might have been discriminated against because of your sexual orientation, read below for more information and resources about sexual orientation discrimination.

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Listen to our three part series on LGBTQ rights in the workplace to learn more about resources, rights, and different experiences of LGBTQ individuals in the workplace. LGBTQ Rights in the Workplace Part I, Part IIPart III.

n 1. What is sexual orientation discrimination?n

Sexual orientation discrimination means treating someone differently solely because of his or her real or perceived sexual orientation: lesbian, gay (homosexual), bisexual, asexual, pansexual, or straight (heterosexual). This means that discrimination may occur because of others’ perception of someone’s orientation, whether that perception is correct or not. It may also occur based on an individual’s association with someone of a different sexual orientation. Someone who is discriminated against on the basis of sexual orientation may also be discriminated against or harassed on the basis of sexgender identitydisability (such as actual or perceived HIV status) or marital status.

Examples of sexual orientation discrimination include:

  • Different Treatment. Employers are prohibited from treating you differently in all aspects of employment because your boss thinks you are lesbian, gay, bisexual, or straight etc. This goes beyond simply being yelled at for showing up late. Being overlooked for a promotion, wrongful termination, receiving a write-up with no basis, and other serious negative employment actions may qualify as different treatment. Some companies have policies that explicitly discriminate against lesbian, gay and bisexual employees, while in other companies the discrimination is more subtle but no less real. You may find that you start to be treated differently once you come out as homosexual to coworkers or place a photograph of your same-sex partner on your desk. The discrimination may come from just a few people in the company, from your supervisor, or from the company’s CEO.
  • Harassment.  Harassment occurs when you are forced to experience comments about your mannerisms or sexual activity, sexual jokes, requests for sexual favors, pressure for dates, touching or grabbing, leering, gestures, hostile comments, pictures or drawings negatively portraying a specific sexual orientation, or sexual assault or rape. Your harasser may be an employer, supervisor, co-worker, or customer, and may be of the opposite or same sex.

If any of these things have happened to you on the job, you may have suffered sexual orientation discrimination. Please see our Attorney Directory for a listing of employment lawyers.

n 2. What federal protections are there for sexual orientation discrimination?n

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination, including based on sexual orientation. In recent years, two major decisions by the Supreme Court secured protections for the LGBTQ+ community, including in the workplace.

In 2015, the Court recognized in the right to same-sex marriage in the landmark case, Obergefell v. Hodges. This paved the way for more progressive legislation. It was not until 2020 that the Court held in Bostock v. Clayton County, GA that Title VII’s prohibitions against employment discrimination do encompass discrimination based on sexual orientation and gender identity.

Title VII applies to all federal employers and all private employers who have 15 or more employees. However, it generally does not apply to smaller employers or to independent contractors. State and local laws and company policies often close this gap.

n 3. Are there any other laws which make it illegal to discriminate on the basis of sexual orientation?n

State laws, local laws, and company policies might offer protections beyond federal law. Federal law sets a baseline. Since Title VII applies to most but not all employers, state law often steps in to close the gap. For example, the New York City Human Rights Law prohibits discrimination based on actual or perceived sexual orientation or gender identity.

For a breakdown of state anti-discrimination laws that protect the LGBTQ+ community, visit the Movement Advancement Project (MAP).

n 4. What if I am being harassed by someone of the same sex or because of my sexual orientation, how does harassment relate to sexual orientation discrimination?n

Harassment for sexual orientation is treated the same as harassment for any other discriminatory reason. Under Title VII, it is illegal for employers to discriminate based on sexual orientation or gender identity. Conduct may be considered harassment if it is offensive, unwelcome, and targeted at a protected characteristic – including sexual orientation. Conduct is more likely to qualify as harassment if it is explicit and repeated. Harassment in the workplace can be from employers, co-workers, and others.

Visit our page on sexual harassment for more information.

n 5. Are homophobic jokes or slurs against the law?n

It depends. Jokes or slurs about your sexual orientation may be considered a form of harassment, which courts have held is a form of discrimination under the law. However, federal law and the laws of most states does not prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious. The conduct must be sufficiently frequent or severe to create a hostile work environment or result in a “tangible employment action,” such as hiring, firing, promotion, or demotion. For more information, see our page on sexual harassment.

n 6. What if my employer does not know my sexual orientation?n

You may choose to keep your sexual orientation a purely private matter; nothing requires you to disclose this information to your employer if you do not choose to do so. However, if you are undergoing discrimination or harassment at work, you may wish to disclose your sexual orientation when speaking with your company’s human resources department and/or a member of management to see whether your employer can work with you to solve the problems you are facing. Otherwise, your company may claim it was unaware of your sexual orientation, and as a result incapable of resolving any discrimination or harassment against you on the basis of your sexual orientation.

n 7. Can I be asked not to discuss my sexual orientation or display a picture of my same-sex partner at work?n

It depends. As long as they are not violating a law, employers can have policies on nearly anything. If an employer wants to prohibit all employees from discussing their personal lives or marriages at work, they can. What they cannot do, however, is apply a policy discriminatorily. It would be illegal for an employer to prohibit LGBTQ+ workers from discussing their relationships but allow heterosexual workers to do so. The same would go for displaying photos.

n 8. Am I entitled to employment benefits for my partner and family?n

If an employer offers certain benefits, they cannot refuse to give those benefits to someone based on their sexual orientation. In 2015 in Obergefell v. Hodges, Supreme Court struck down section 3 of the Defense of Marriage Act (DOMA), which previously posed obstacles for LGBTQ+ spouses.

A state law or company policy might impose benefit requirements that go beyond federal law. Some employers, for example, extend benefits to encompass workers’ domestic partners instead of only their spouses. Domestic partners are people who live together and act as though they are married even though they legally are not.

n 9. Can my employer justify their discrimination on religious grounds?n

Although Bostock v. Clayton County, GA (S.C. 2020) extended Title VII to prohibit employment discrimination based on sexual orientation, the Court did not address Title VII’s religious exemption. The exemption allows employers for religious organizations and religious schools to make employment decisions based on religion.

What is unclear, however, is whether religious employers can rely on this exemption to discriminate against LGBTQ+ persons. From the limited case law on the subject so far, it seems courts will look to determine whether the hiring decision was actually based on religious reasons or was instead based on sexual discrimination.

For example, a North Carolina court ruled in an employee’s favor in 2021 in Billard v. Charlotte Catholic High School. In that case, a substitute teacher at a Catholic school was fired after announcing his same-sex engagement on social media. The court determined that the school fired him because of his sexuality, not because his post advocated against Catholicism as the school had argued.

n 10. Can I take leave to care for my partner or my partner’s family members?n

Yes. The Family and Medical Leave Act (FMLA) is a federal law that protects employees’ right to take family or medical leave without retaliation, such as by being fired or losing health insurance.

Although the Act’s definition of “spouse” was previously unfriendly toward the LGBTQ+ community, the Supreme Court’s 2015 decision in Obergefell v. Hodges changed this when it protected the right to same-sex marriage and declared section 3 of the Defense of Marriage Act (DOMA) unconstitutional. Nationwide, eligible employees under the FMLA can take leave to care for a same-sex spouse or for a common-law partner. They also can take leave to care for an adopted child.

The FMLA is the baseline, but states and companies can offer further protections. For example, an employer might offer paid leave even though the FMLA does not require it.

Read the FMLA here, or workplacefairness.org for more information. 

n 11. What is the difference between sexual orientation discrimination, sex discrimination, and gender identity discrimination?n

Sexual orientation and gender identity are independent from each other. Not all people who identify as a gender other than their sex at birth have a sexual orientation other than heterosexual. Additionally, not all people who identify with a gender other than their sex at birth consider themselves to be transgender.

Until 2020, the law was unclear on how to handle this distinction. The law was largely up to states and could vary drastically. Today, however, federal law – Title VII – is interpreted to prohibit discrimination based on either sexual orientation or gender identity.     

Sex discrimination is when a person is treated differently because of their biological sex. For example, an employer paying women less than male employees would be illegal sex discrimination.

See workplace fairness.org  for more information on gender identity. 

n 12. Who enforces the law?n

The Equal Employment Opportunity Commission (EEOC) is a federal agency that may sue on behalf of employees who were discriminated against. The EEOC provides guidance for filing a discrimination complaint with itself or another authority. Protections under state and local laws are generally enforced by state or local anti-discrimination agencies, which may be called a “fair employment,” “civil rights,” or “human rights” commission or agency. For more information about your state and local agencies, see our page on filing a complaint.

n 13. How can I file a complaint?n

To file a discrimination complaint or view remedies available to you, please contact your state or local authority or an attorney. See workplacefairness.org for more information on filing a claim for discrimination.

n 14. What are the remedies available to me?n

For remedies available under state and local statutes, please contact your state or local anti-discrimination agency or an attorney in your state. For more information, see our page on filing a complaint.

n 15. How much time do I have to file a charge of discrimination?n

If you are filing a sexual orientation discrimination charge with the EEOC, you generally must do so within 180 days of the discrimination occurring. If, however, a state or local agency also prohibits sexual orientation discrimination, then you have 300 days to file. 

These deadlines relate to specific discriminatory events. If you experienced multiple events, then you must file within the time frame after the event you seek to challenge – unless you are experiencing ongoing harassment. For ongoing harassment, you may file following the most recent incident.

It is illegal for an employer to fire or otherwise retaliate against an employee for filing a complaint with the EEOC. See our page on whistleblowing for more information.

For filing a charge with an authority other than the EEOC – such as a local or state court – please ask your state or local agency about what law applies to you. 

Visit workplacefairness.org for more information on filing a discrimination complaint.