Sexual orientation discrimination in the workplace is legally defined as negative, unwanted, or differential treatment of an employee based on their sexual orientation. Despite this singular definition, sexual orientation discrimination can look very different depending on the action and the aggressor. To help you better identify this form of discrimination and understand the rights of LGBTQIA workers in America, this article will review the different types of workplace sexual orientation discrimination.
On June 15, 2020, the Supreme Court ruled in a 6-3 decision that Title VII prohibits discrimination on the basis of sexual orientation or gender identity. These forms of discrimination became illegal by making them part of the protected classes that fall under this Title. Additionally, because federal law generally takes precedence over state law, even employers in at-will employment states can get taken to court for discrimination. It is also illegal to discriminate against an employee whom an employer perceives to be of a particular sexual orientation. For example, if an employer fires an employee for being gay, but the employee turns out to be heterosexual, that is still illegal.
The only time discrimination is “allowed” is if an employer determines an employee lacks a bone fide occupational qualification or quality necessary to do the job. However, this is only allowed in very narrow circumstances and is mainly used in cases where an applicant or employee is extremely disabled. Even then, it can be hard to prove and even more difficult to prove in cases where sexual orientation is the quality in question. Ultimately, you shouldn’t let a BFQ argument go unchallenged, as a flimsy claim will quickly fall apart under questioning.
Workplace sexual orientation discrimination can occur during the hiring process, either in the interview portion, job description, or application process. It is illegal for an employer to ask you to identify your sexual orientation or any questions surrounding your sexual orientation. These questions can take the form of overtly inquiring, asking about your marital status, or even asking if you plan to get married. Discriminatory employers may drop hints about their preference for whom they’d like to work for them or how they feel about the LGBTQIA community. While singular, isolated cases are harder to prove, you shouldn’t assume that these cases are solitary, as behaviors such as these are almost always repeated and should get reported.
If you or another employee are assumed to, or known to be, part of the LGBTQIA community and are not receiving deserved promotions while others are, it’s time to pay attention. First, you should review your employee handbook as it should detail to some extent the required qualities to get considered for a promotion. If you can’t find the information you’re looking for, talk to a supervisor, manager, or HR personnel who can point you in the right direction. If you meet the qualifications but are consistently passed over for promotion, this may be a cause of sexual orientation discrimination, and it’s worth consulting a lawyer.
Your wage should be clearly outlined in your contract, as well as overtime rates. If you’re not receiving promised compensation, aren’t paid overtime, or are being made to do labor outside of work hours, that is an illegal breach of contract. In these cases, it’s essential to speak with other employees you can trust about what they’re getting paid. It’s best to talk with those with the same job title, similar duties, experience, and length of employment to get a better picture of the situation. If other workers receive fair pay for their labor, and an employee of differing sexual orientation is not, this is blatant sexual orientation discrimination.
Verbal harassment is easily identified as it often involves slurs, pejoratives, threats, and general bullying. This form of harassment doesn’t have to be face to face either and can take place over the phone or digitally through email, social media, and personal messages. Most often, this type of harassment isn’t done overtly but gets acted out more insidiously in the form of “jokes” or “workplace banter.” Even if the aggressor claims they didn’t know they were being offensive, you should still report it, lest they continue their bad behavior and harass another person. Generally, if it makes you feel uncomfortable or unsafe, speak to someone.
Physical harassment can be outright bullying, hitting, stealing, or even someone damaging your workspace. What may get written off as hazing or workplace pranks are even more unacceptable if targeted towards a worker based on their sexuality. In particular, LGBTIA members are vulnerable to physical harassment; sometimes, this form of harassment won’t take place in the office. Aggressors often believe that if they take their bullying “off school grounds,” they can’t get in trouble for it, but this isn’t the case. If someone you work with harasses you in any way, in or out of work, contact your place of employment and the police, especially if you feel unsafe.
Sexual harassment in itself can take a few different forms and isn’t always as overt and obvious as most would like to think it is. Sexual harassment can include inappropriate jokes, touching, offensive messages, sexual rumors, repeated comments on appearance, asking about your sex life, or going into detail about their own. Quid pro quo sexual harassment is another issue that LGBTQIA members are vulnerable to and is defined as seeking sexual favors in return for job benefits. The aggressor may offer raises or promotions or threaten you with demotion or poor performance reviews to get you fired.
Ultimately, all forms and types of workplace sexual orientation discrimination are illegal, regardless of where you live or if you’re located in an at-will employment state. However, if you’re struggling to determine if what you’ve experienced counts as discrimination, need help forming a case, or desire legal counsel, the Law Firm of Tamara N Holder can help. Our firm is dedicated to providing knowledgeable and experienced discrimination lawyers for gay, lesbian, and bisexual people or any other members of the LGBTQIA community.
