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Common Forms of Discrimination Based on Sexual Orientation

September 30, 2021
By Haeggquist & Eck
Discrimination Based on Sexual Orientation

Under California law, it is illegal to discriminate against employees based on actual or perceived sexual orientation. Sexual orientation is a protected characteristic under the Equal Employment Opportunity Commission (EEOC).

In other words, your employer cannot discriminate against you because of your actual or perceived homosexuality, heterosexuality, or bisexuality. However, not all workers can recognize signs of workplace discrimination based on sexual orientation.

For this reason, we decided to list some of the most common forms of discrimination based on sexual orientation. If your employer discriminated against you because of your sexual orientation, contact a San Diego discrimination lawyer. You likely have important legal rights that a lawyer can help you protect.

Discrimination Based on Sexual Orientation is Illegal in California

California’s Fair Employment and Housing Act (FEHA) prohibits employers from firing, refusing to hire, or in any other way discriminating against employees because of their sexual orientation (California Government Code § 12940).

Under the FEHA, it is also illegal for employers to harass employees because of their sexual orientation. To hold your employer liable for harassment based on sexual orientation, you must prove that the behavior was so severe or pervasive that it interfered with your ability to work (California Government Code § 12923).

Note: FEHA regulations apply to all companies that have five or more employees.

In addition, Title VII of the federal Civil Rights Act prohibits employers from firing, refusing to hire or promote, demoting, harassing, or otherwise discriminating against employees based on their gender identity, gender expression, or sexual orientation.

Thus, you can sue your employer and recover compensation if your employer discriminates against you because you are:

  • Bisexual
  • Asexual
  • Heterosexual
  • Straight
  • Gay
  • Lesbian

When filing a discrimination claim, it does not matter whether the sexual orientation is actual or perceived. In other words, you can sue your employer even if your employer is mistaken about your orientation or identity.

Common Forms of Sexual Orientation Discrimination

Under federal and California state law, it is illegal to discriminate against employees based on their sexual orientation.

Common forms of discrimination based on sexual orientation include:

  • Firing or terminating employment
  • Refusing to hire
  • Refusing to promote
  • Demoting
  • Denying a pay raise
  • Denying the benefits to which an employee is entitled
  • Denying reinstatement
  • Asking a prospective employee about sexual orientation during a job interview
  • Harassing an employee because of their actual or perceived sexual orientation
  • Denying an employee’s access to educational or training programs available to employees of a specific sexual orientation
  • Refusing to select an employee for a training program
  • Paying less because of a sexual orientation
  • Reducing an employee’s salary after learning about their orientation
  • Forcing an employee to quit voluntarily
  • Discharging an employee
  • Including discriminatory language in the conditions of employment
  • Assigning inferior job duties
  • Giving more desirable jobs to workers of a specific sexual orientation
  • Promoting workers of a specific sexual orientation
  • Providing reduced benefits
  • Issuing poor performance evaluations
  • Making disparaging comments or insulting an employee because of their sexual orientation
  • Retaliating against an employee for reporting discrimination at work, filing a complaint, or helping co-workers file a complaint
  • Discriminating against an employee in any other way

Employers cannot retaliate against employees for complaining about discrimination or harassment based on sexual orientation or any other protected characteristic. Retaliation is illegal in California, which means your employer cannot punish you or take adverse employment action against you for complaining about workplace discrimination or harassment.

If you believe that your employer has retaliated against you for exercising your rights, speak with a retaliation lawyer. The right employment attorney will review your unique situation and help you understand whether or not you can sue your employer for discriminating or retaliating against you.

What to Do if You Experience Discrimination Because of Your Sexual Orientation?

If you experience workplace discrimination based on your sexual orientation, file an internal complaint with help from your lawyer. When complaining about sexual orientation discrimination—or any other type of discrimination in the workplace, for that matter—follow your company’s internal procedure for filing complaints.

Usually, a victim of discrimination or harassment must file a formal complaint with the company’s human resources (H.R.) department. You will want a lawyer to fill out that complaint for you.

When filing a discrimination complaint, document all instances of workplace discrimination you can remember.

You should keep a journal and write down:

  • The date and time of each incident
  • The place (a specific area of the worksite) where the incident occurred
  • Whether anyone witnessed the incident
  • What makes you believe that you were harassed or discriminated against because of your sexual orientation

If your employer fails to take reasonable steps to correct the situation after receiving an internal complaint, you could proceed with filing a claim with California’s DFEH. Once your claim is received, the agency will launch an investigation into your complaint.

If the DFEH determines that the alleged discrimination took place after concluding its investigation, the agency will attempt to resolve the dispute through a settlement or file a civil lawsuit.

Note: In California, you have one year from the latest incident of discrimination to bring a claim with the DFEH.

Alternatively, you can also file a civil lawsuit against your employer for discrimination based on sexual orientation. Generally, California courts require plaintiffs in workplace discrimination cases to exhaust their administrative remedies before bringing a lawsuit against the employer.

Contact an Employment Discrimination Lawyer

Your discrimination lawyer may be able to help you obtain a right to sue your employer without having to go through the entire administrative process first. Speak with a knowledgeable attorney to determine your best course of action to hold your employer responsible for sexual orientation discrimination.

Never ignore workplace discrimination of any kind, including based on sexual orientation. Taking action not only helps you recover financially for what you experienced, but it also helps to prevent future instances of discrimination against other employees.