What Is Sexual Orientation Discrimination In The Workplace?

There are both state and federal labor laws that are designed to protect employees from sexual orientation discrimination in the workplace. However, it is important to understand how these laws work and what constitutes discrimination.

What Is Sexual Orientation Based Discrimination?

Discrimination involving gender identity or sexual orientation consists of harassment or unfair treatment which focuses on people of a certain orientation, such as being lesbian, gay, or transgender. An employer that harasses or discriminates against an employee because of their sexual identity can be held legally liable.

This is because discrimination based on gender or sexual identity is a violation of Title 7 for the Civil Rights Act of 1964, which is the federal law that prohibits worker discrimination based on religion, race, national origin, or sex. Furthermore, many individual states and companies have separate policies or laws on top of the 1964 Act.

Supreme Court Ruling

In addition to the 1964 Civil Rights Act, there are various other federal laws that are designed to protect workers from discrimination in the workplace involving their sexual orientation. There was a landmark Supreme Court case in 2020 called Bostock v. Clayton County where the Court confirmed that sex-based discrimination consists of harassment which is based on gender identity as well as sexual orientation. Finally, almost half of U.S. states have specific laws which prohibit discrimination due to one’s gender identity or sexual orientation, and this includes California.

When Should Legal Action Be Taken?

To warrant litigation, harassment or distinct treatment must extend beyond mere yelling for being late or things of that nature. Rather, the treatment must consist of specific actions such as being passed up for promotion, receiving write-ups that are baseless, being terminated wrongfully due to your gender identity, or name calling.

Additionally, it helps to have evidence of discrimination or harassment. You do not want to find yourself in a situation where it is your word versus your boss; because if the company backs him up due to office politics, it can be very difficult to contest your case. The best chance of winning a discrimination suit involving gender identity or sexual orientation is to have a vast collection of evidence gathered over a period of time that can be unveiled in a court of law. It is one thing for the state or federal government to outlaw discrimination, in order to win your case you need adequate proof.

Which States Provide the Most Protection?

Currently, there are around 21 states including the District of Columbia which currently ban discrimination based on gender identity or sexual orientation. However, many believe that California leads the nation when it comes to actually enforcing these laws.

About fifty percent of the LGBT community resides in states which don’t apply any laws regarding workplace SOGI discrimination. Federal progress has actually been a bit slower, but many analysts expect that specific SOGI discrimination bans will be forthcoming in the future, especially since former President Barack Obama in 2014 signed the executive order which requires any company doing business with the U.S. government to maintain policies which do not discriminate due to sexual orientation or gender identity.