Despite California employment law banning the practice of discrimination based on sexual orientation, the sad truth that the practice still exists in companies of all sizes should be cause for concern among civil rights activists. Understanding how California and the federal government protect the rights of employees of different sexual orientations is a good place to start for ensuring full compliance with employment discrimination laws at all governmental levels.
Sexual Orientation Discrimination Defined
Under the California Fair Employment and Housing Act (FEHA), employers break the law when they discriminate against employees because of their sexual orientation. It is not just how an employee defines sexual orientation; employers can be on the hot legal seat for perceiving a worker’s sexual orientation, whether that perception is accurate or not.
Sexual orientation encompasses three broad categories of preferences: Heterosexuality, homosexuality, and bisexuality. The key to proving discrimination based on sexual orientation is collecting evidence that demonstrates an employer made biased decisions that negatively impacted an employee.
When Discrimination Becomes Retaliation
FEHA not only prohibits discrimination based on sexual orientation, but it also protects workers from employer-sanctioned retaliation in the following instances.
- An employee who complains “in good faith” concerning discrimination based on sexual orientation
- An employee who files a civil lawsuit “in good faith”
- An employee who participates in litigation or an investigation into discriminatory practices that involve sexual orientation issues
Intimidation, which often includes the threat of job loss, is an act that can lead to a substantial punishment for an employer that engages in such tactics. If you are on the receiving end of intimidating tactics because you have exposed sexual orientation in the workplace, act with a sense of urgency by contacting a California-licensed employment attorney.
Examples of Discrimination Based on Sexual Orientation
Discrimination based on sexual orientation can take many forms. The following examples highlight the most common forms sexual orientation discrimination can take.
- Removed from the hiring process
- Terminated without proving a cause
- Denied promotions
- Received one or more poor performance reviews
- Prevented from accessing job resources
- Denied entrance into a company training program
FEHA applies to employers that have a minimum of five employees. It also applies to labor organizations, employment agencies, and licensing boards. In 2017, the California Fair Employment and Housing Commission amended FEHA to define gender identity issues that can cause discrimination based on sexual orientation.
FEHA now protects the California employees that identify as transgender.
Additional Definitions Under FEHA
The 2017 update to FEHA by the California Fair Employment and Housing Commission included several new definitions. For example, the commission defined “Gender Expression” to mean gender-related appearance or behavior, which employers cannot judge in any way. “Gender Identity” covers an employee’s understanding of gender, which includes male, female, or any combination of the two genders.
FEHA also protects workers that are transitioning from one gender to another gender that includes changes in pronoun name and the type of public facility used. California employment discrimination law also prohibits harassment based on sexual orientation.
Taking Action Against Sexual Orientation Discrimination
California employment discrimination statutes protect workers against discrimination based on sexual orientation. However, employees that face sexual orientation discrimination in California must take action to stop the illegal acts of discrimination and harassment.
Inform Your Employer
If you face sexual orientation discrimination in the workplace, you should inform your employer about the acts of discrimination. Informing your employer typically dictates how to proceed with your complaint.
Save and Organize Evidence of Discrimination
Evidence of discrimination based on sexual orientation can come in the form of documented performance reviews, as well as the daily records you keep that describe discriminatory practices. Witness statements also play an important role in moving your complaint forward to an administrative and/or a judicial hearing
Contact an Employment Lawyer
After giving your employer time to respond to a discrimination complaint, contact a California employment attorney to determine the best course of action. Your attorney not only takes charge of your complaint, but your lawyer can also help you organize the evidence required to win a claim filed against your employer.
File a Claim with FEHA and the EEOC
Filing a claim with FEHA and the Equal Employment Opportunity Commission (EEOC) can motivate your employer to take your complaint more seriously. If your employer refuses to take action on your discrimination complaint, the FEHA and/or the EEOC might rule in your favor, which can mean punitive measures taken against your employer to discourage future discriminatory acts based on sexual orientation.
