Sexual orientation discrimination in the workplace occurs when an employee is treated unfairly due to their sexual orientation, and it can manifest as harassment or a denial of benefits or rights. Despite the progress society has made in its strides toward acceptance, this form of discrimination is still an issue. Unfortunately, due to the laws that aim to protect members of the LGBTQIA community, many aggressors have attempted to become more subtle in their transgressions and use loopholes to get around the law. This insidiousness has made it even more important for members of the LGBTQIA community and their loved ones to recognize sexual orientation discrimination at work. No one should get away with this bigotry, and aggressors should face punishment to the full extent of the law.
Sexual orientation discrimination is, by definition, the differential treatment of an employee based on their sexual orientation, and it’s illegal. It includes discrimination against people who identify as gay, lesbian, bisexual, pansexual, etc. When most people think of this form of discrimination, they typically think of the power imbalance between an employee and an employer. However, discrimination can occur between two peers or an employee against their employer. A power imbalance does not have to be in place for a discriminatory action to qualify as discrimination. Do not hesitate to take the appropriate action, which will be discussed later, if you suspect you are a victim of sexual orientation discrimination.
A coworker may or may not know your actual sexual orientation but may treat you in a discriminatory manner. For example, preferential treatment, such as praise, promotions, desirable jobs, or positions, targeted mainly or solely toward heterosexual workers constitutes sexual orientation discrimination. It may not always look like someone telling off-color jokes or hurling epithets. It may look as simple as workers of a particular sexual orientation only being in lower positions.
At first glance, this may not sound discriminatory, as it could be a genuine mistake. However, the current percentage of adults who identify as LGBTQIA has recently risen to 7.1 percent of the US population. That is 23,394,500 people in the United States, making it highly and statistically improbable that a corporation would never hire or promote a single person in the LGBTQIA community. If you notice this trend at your workplace, it is likely not a mistake.
The best way to tell if this is the case is to talk to HR and conduct a meeting with your employer or coworker, but you should only do so if you feel confident that you will be safe and not unwittingly outed by your company. Having a recorded meeting in place can ensure your safety and create a paper trail. In addition, if you have a meeting with HR to discuss the issue and they immediately resolve the problem, it is possible that the issue was accidental. However, if you find that nothing improves because of the meeting and they take no action to remedy the situation, there may be a more significant issue.
This applies not only to subtle acts of discrimination but also to more overt actions like jokes, comments, harassment, bullying, or even violence. Note any action that makes you feel unsafe, uncomfortable, or purposely undervalued or underpaid, and bring it to the attention of the appropriate members of your workplace. How your coworker and company react is the best way to tell if sexual orientation discrimination is occurring. A workplace cannot fire you for simply inquiring about a concern. If they do, that will tell you all you need to know about the company and be grounds for legal action.
Recently, under the June 15, 2020, ruling of Bostock v. Clayton County, Georgia, by the Supreme Court, members of the LGBTQIA community are officially a protected class and fall under the protections given in the 1964 Civil rights act, most notably under Title VI and Title VII. Title VI particularly prohibits discrimination against protected classes that receive federal financial assistance. Title VII prohibits discrimination against protected classes in general places of employment.
It should be noted that the other protected classes are gender, race, sex, religion, ethnicity, disability, veteran status, and pregnancy status. If a company is willing to discriminate against one protected class, they are likely to discriminate against another. If you are part of another one of these protected classes or work with other members of protected classes, you may also want to keep an eye out for other forms of discrimination. It may help you build a case if you decide to proceed with litigation.
Bona fide occupational qualification, also known as the BFOQ defense, allows employers to legally discriminate based on the idea that a person cannot fully meet a job’s requirements based on who they are. For example, regarding sexual orientation discrimination, say you apply to become a youth group leader at a religious facility. This facility can refuse to hire based on the idea that, because of your sexual orientation, you cannot meet the religious standards they have set. This defense can be used in a myriad of situations that put LGBTQIA members at risk. Despite the many attempts to eliminate the BFOQ defense, it still stands true and is a large part of how some employers get away with sexual orientation discrimination.
To file a complaint, you must do so within the first 180 days of the alleged discriminatory action to the EEOC. However, there are a few steps you may want to take before you do so. As stated previously, you may want to contact HR as soon as possible to either meet with the alleged aggressor or get a feel for the company’s policies on legal proceedings. However, only do so if you feel safe enough. If not, it’s best to contact a sexual orientation lawyer immediately. Before you meet with your lawyer, you may also want to gather any evidence you may have, such as physical or digital correspondence, work reviews, and your contract.
Organizing a meeting with a sexual orientation lawyer can help you better understand whether your case will hold water in court before you start taking legal action on your own and possibly waste your time. Once you’ve done so, retain that lawyer to help you file a complaint with the EEOC. The EEOC will then conduct its own investigation, which may take up to 10 months to complete. Hiring a lawyer makes filing a complaint easy and ensures you don’t waste any time or effort.
Now more than ever, it’s crucial to recognize sexual orientation discrimination at work and stomp it out for good if we want society to progress and move forward. If you fear that you’ve been a victim of sexual orientation discrimination, contact a lawyer immediately to see if you’re entitled to proceed with litigation and receive compensation.
