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Your Rights Sexual Orientation Discrimination

Outten & Golden LLP

This page provides answers to the following questions:

1. What is sexual orientation discrimination?

2. Which federal law covers sexual orientation discrimination?

3. Are there any laws which make it illegal to discriminate on the basis of sexual orientation?

4. What if I'm being harassed by someone of the same sex?

5. Are homophobic jokes or slurs against the law?

6. What if my employer does not know my sexual orientation?

7. Can I be asked not to discuss my sexual orientation or display a picture of my same-sex partner at work?

8. Am I entitled to employment benefits for my partner and family?

9. Can my employer discriminate against me on religious grounds?

10. Can I take leave to care for my partner or my partner's family members?

11. What is the difference between sexual orientation discrimination and sexual harassment?

12. What is the difference between sexual orientation discrimination and gender identity discrimination?

13. Who enforces the law?

14. How can I file a complaint?

15. What are the remedies available to me?

16. How much time do I have to file a charge of discrimination?

1. What is sexual orientation discrimination?

Sexual orientation discrimination means treating someone differently solely because of his or her sexual orientation: lesbian, gay (homosexual), bisexual, or straight (heterosexual). This discrimination may also occur because of a perception of someone's, whether that perception is correct or not. Someone who is discriminated against on the basis of sexual orientation may also be discriminated against or harassed on the basis of sex, gender identity, disability (such as actual or perceived HIV status) and/or marital status.

Examples of sexual orientation discrimination include:

  • different treatment: you are not hired, not promoted, or fired specifically because your boss thinks you are lesbian, gay, bisexual, or straight. Some companies have company policies that explicitly discriminate against lesbian, gay and bisexual employees, while in other companies the discrimination is more subtle but no less real. You may find that you start to be treated differently once you come out as homosexual to coworkers or place a photograph of your same-sex partner on your desk. The discrimination may come from just a few people in the company, from your supervisor, or from the company's CEO.
  • harassment: you are forced to experience comments about your mannerisms or sexual activity, sexual jokes, requests for sexual favors, pressure for dates, touching or grabbing, leering, gestures, hostile comments, pictures or drawings negatively portraying lesbian and gay people, or sexual assault or rape. Your harasser may be an employer, supervisor, co-worker, or customer, and may be of the opposite or same sex.
  • benefits discrimination: your company pays health insurance or other benefits for the spouses and families of married heterosexual employees, while you are not allowed to obtain benefits for your same-sex partner (whom you cannot legally marry).

If any of these things have happened to you on the job, you may have suffered sexual orientation discrimination.

2. Which federal law covers sexual orientation discrimination?

Sexual orientation discrimination is not covered by the federal laws that generally prohibit discrimination based on race, color, sex, religion, national origin, age, and disability for private employers. While there are efforts underway to pass a federal law to make discrimination on the basis of sexual orientation illegal (the Employment Non-Discrimination Act, or ENDA), this bill has not yet become law. For more information on ENDA, see the Wikipedia ENDA page.

However, many federal government employees are covered by provisions in the the Civil Service Reform Act of 1978 which prohibit sexual orientation discrimination. One of these provisions 5 U.S.C.  2302(b)(10) makes it illegal for any employee who has authority to take certain personnel actions from discriminating among employees or job applicants on the basis of conduct that does not adversely affect employee performance. This language has been interpreted to prohibit discrimination based upon sexual orientation.

Currently, 20 states and the District of Columbia, as well as several hundred municipalities (counties and cities) also have laws that prohibit sexual orientation discrimination. This number is constantly changing, so you should also check with an attorney or local gay legal or political organization to see whether any new laws apply to you. For more information about the law in your state, see the National Gay & Lesbian Task Force's map of State Nondiscrimination Laws in the U.S..

If these exceptions may apply to you, and you feel you have suffered sexual orientation discrimination, you may want to consult with an attorney, governmental agency, or personnel office to learn more about any protections that may apply to you.

3. Are there any laws which make it illegal to discriminate on the basis of sexual orientation?

As noted in the last question, many federal employees are covered by anti-discrimination provisions. Similarly, some states, counties and cities, even those without laws protecting all employees, have executive orders and/or civil service provisions making discrimination on the basis of sexual orientation illegal for state and/or local governmental employees.

Many union collective bargaining agreements (contracts) include an anti-discrimination provision, which may include sexual orientation. If such a provision is included in your union contract, it gives you a basis to file a grievance if you have been discriminated against because of your sexual orientation.

The law in this area is constantly changing, with numerous legislative efforts currently in progress around the country to add sexual orientation to state laws, local ordinances, governmental regulations, and corporate policies. You should check with a local attorney, gay and lesbian rights organization, or your corporate human resources department to see whether there have been any recent changes in the law or policies affecting your employment. Even if there is not legal protection affecting your employment, you may be able to encourage your employer to voluntarily cease discriminatory activity and/or to educate others in your workplace to help improve your employment situation.

4. What if I'm being harassed by someone of the same sex?

Sexual harassment is a form of sex discrimination that is prohibited by federal law and the law of most states, regardless of whether the state also has a law making discrimination on the basis of sexual orientation illegal. The victim as well as the harasser may be a woman or a man. The U.S. Supreme Court has specifically ruled that the victim does not have to be of the opposite sex to be able to bring a legal claim for sexual harassment.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature is considered sexual harassment, when submission to, or rejection of, this conduct affects your employment, unreasonably interferes with your work performance or creates an intimidating, hostile or offensive work environment.

Sexual harassment can occur in a variety of circumstances:

  • The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
  • The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
  • Unlawful sexual harassment may occur without some economic harm to the victim, such as loss of a job.
  • The harasser's conduct must be unwelcome.

If you are being sexually harassed, it is helpful for you to directly inform the harasser that the conduct is unwelcome and must stop. If you are a union member, it may also be helpful to contact a union civil rights committee for appropriate action. You should use any employer complaint mechanism or grievance system available, as your employer is under a legal obligation to take immediate and appropriate action when an employee complains.

For more information, see our page on sexual harassment.

5. Are homophobic jokes or slurs against the law?

It depends. Jokes or slurs about your sexual orientation may be considered a form of harassment, which courts have held is a form of discrimination under the law. However, federal law and the laws of most states does not prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious. The conduct must be sufficiently frequent or severe to create a hostile work environment or result in a "tangible employment action," such as hiring, firing, promotion, or demotion. For more information, see our page on sexual harassment.

6. What if my employer does not know my sexual orientation?

You may choose to keep your sexual orientation a purely private matter; nothing requires you to disclose this information to your employer if you do not choose to do so.

However, if you are undergoing discrimination or harassment at work, you may wish to disclose your sexual orientation when speaking with your company's human resources department and/or a member of management to see whether your employer can work with you to solve the problems you are facing. Otherwise, your company may claim it was unaware of your sexual orientation, and as a result unaware and/or incapable of any discrimination or harassment against you on the basis of your sexual orientation.

Also, as more and more people become aware of their gay co-workers, neighbors, family members, friends, and professionals, withholding basic civil rights protections in employment becomes increasingly difficult for an employer to justify, so you may wish to "come out" (disclose your sexual orientation) to your employer for that reason.

7. Can I be asked not to discuss my sexual orientation or display a picture of my same-sex partner at work?

If you live in a state or city with provisions which make discrimination on the basis of sexual orientation illegal, the answer would generally be no, especially if other employees are allowed to discuss activities with their spouses or opposite-sex partners, or to display pictures of their spouses, opposite-sex partners, or children on their desks.

In the absence of any legal protections, however, private sector employees are employed "at-will," which means the employer has the right to terminate your employment at any time, for no reason at all or for any reason (including a bad one), so long as the reason is not illegal—even if your performance has been outstanding. Therefore, if you disobey your employer's request, you may find yourself without any legal recourse.

If you find yourself in this situation, you may wish to speak with your company's human resources department, other supervisors and co-workers, or a local attorney to determine whether you can work with your employer to resolve this issue. Even if there are not legal protections affecting your employment, you may be able to encourage your employer to voluntarily change its discriminatory policies and/or to educate others in your workplace to help improve your employment situation.

8. Am I entitled to employment benefits for my partner and family?

Many employers subsidize all or a large portion of health, dental, vision, and other benefits for spouses and families of married employees without giving similar compensation to unmarried and/or childless workers in some other form. Gay and lesbian employees are especially affected by this workplace trend, given that same-sex couples are not currently allowed to marry anywhere in the United States except the states of California and Massachusetts. (Some states have civil unions and/or domestic partnership laws which provide the basis for some companies to provide equivalent benefits to same-sex couples who meet the state's partnership or civil union requirements.

Even in states where sexual orientation and/or marital status discrimination is illegal, several state laws have exceptions for benefits which permit employers to legally discriminate in the benefits provided. For more information, please see the Human Rights Campaign's Relationship Recognition page. Some cities, however, including San Francisco, Los Angeles, Berkeley, Oakland (and San Mateo County), California; and Seattle and Tumwater, Washington, have passed "equal benefits" laws, which require employers that contract with the city government to offer the same benefits to employees' domestic partners as they offer to their legal spouses.

One way to eliminate sexual orientation discrimination from employee benefits programs is to implement "cafeteria"-style benefits programs in which all workers, regardless of marital or familial status, receive the same amount of credits to be used for benefits. Giving domestic partner benefits to same-sex and heterosexual unmarried couples also helps eliminate some discrimination against unmarried workers who have a partner. Currently over 4,000 U.S. companies, including over 160 of the Fortune 500, offer domestic partnership benefits to their employees. Some companies have adopted an "extended family" benefits program to fairly compensate unmarried employees who live with a dependent adult blood relative.

Even where such practices are not be required by law, employers interested in hiring and retaining valuable employees may wish to voluntarily adopt such programs. If you feel you have been treated unfairly due to your sexual orientation, or marital or familial status, you may wish to explore with your employer's personnel or human resources department whether additional options are either currently available or under consideration, and discuss with other workers whether they also object to the difference in benefits.

For more information on domestic partnership benefits, see the Human Rights Campaign's Domestic Partnership Page.

9. Can my employer discriminate against me on religious grounds?

Generally not. In some states, religious employers are exempted from anti-discrimination laws. If you work for a non-religious employer, however, your employer may find it difficult to maintain a legitimate business justification for policies or practices which discriminate against employees based on sexual orientation. The personal religious beliefs of a particular supervisor would rarely, if ever, be a legitimate basis for discrimination in this situation, especially if other company employees had been treated differently.

(This assumes discrimination on the basis of sexual orientation is against the law; however, this form of discrimination either may not be specifically against the law or not yet legally resolved in certain states, as discussed above.)

10. Can I take leave to care for my partner or my partner's family members?

Under the primary federal law protecting the right to take family or medical leave without losing your job and health insurance benefits or suffering retaliation, the Family and Medical Leave Act (FMLA), the definition of "spouse" does not include an unmarried partner. However, if you are also the parent of your partner's child, through adoption or acting in a parental capacity, you may be able to take FMLA leave to care for you and your partner's child.

The law in some states may be different. For example, California law requires that employers offer sick leave to care for domestic partners and/or your partner's children. Your company's leave policy, especially if you have domestic partnership benefits and/or a non-discrimination clause which includes sexual orientation, may provide for leave even though it is not required by law. If you need leave for this reason, consult your company handbook or corporate human resources department to determine whether your employer will allow you to take leave.

11. What is the difference between sexual orientation discrimination and sexual harassment?

Sexual orientation discrimination and sexual harassment often occur together where gay and lesbian employees have been the target of humiliating and degrading sexual comments in the workplace—comments which can focus on the victim's failure to fit traditional gender stereotypes of "masculinity" and "femininity."

However, courts have often focused on the differences between the two legal concepts to prevent gay and lesbian employees who have been harassed from having the same legal protections available to non-gay employees who have been subjected to similar comments. These courts have ruled that comments focused on the victim's sexual orientation represent discrimination on that basis, not covered under federal law, instead of sexual harassment, a form of sex discrimination that is covered under federal law. Other courts have ruled that these types of sexual comments, as they relate to gender stereotypes, are a form of illegal sex discrimination under federal law. For more information, see our page on sexual harassment.

If you have been subjected to these types of comments, you may wish to consult with an attorney who specializes in sexual harassment and/or sexual orientation discrimination to determine what laws may offer legal protection in your state.

12. What is the difference between sexual orientation discrimination and gender identity discrimination?

The term "sexual orientation" is generally understood to refer only to whether a person is homosexual (gay), heterosexual (straight), or bisexual, while "gender identity" refers to one's self-identification as a man or a woman, as opposed to one's anatomical sex at birth. Not all transgender people are gay. Many transgendered people identify as straight; many transgender women have male partners and many transgender men have female partners. For more information, please see our page on gender identity discrimination.

While 20 states and the District of Columbia make it illegal to discriminate on the basis of sexual orientation, only twelve states and D.C. define 'sexual orientation' to either include 'having or being perceived as having a self image or identity not traditionally associated with one's biological maleness or femaleness or specifically make it illegal to discriminate on the basis of gender identity. In other states, where courts have analyzed the state's sexual orientation antidiscrimination law, courts have been divided: some narrowly interpreting the laws to exclude gender identity, on the grounds that there is no evidence that gender identity was intended to be included in the law's definition of sexual orientation, while others interpret the law to provide some protection.

13. Who enforces the law?

Protections under state and local laws are generally enforced by state or local anti-discrimination agencies, which may be called a "fair employment," "civil rights," or "human rights" commission or agency. For more information about your state and local agencies, see our page on filing a complaint.

14. How can I file a complaint?

To file a complaint under state and local statutes, please contact your state or local anti-discrimination agency or an attorney in your state. For more information, see our page on filing a complaint.

15. What are the remedies available to me?

For remedies available under state and local statutes, please contact your state or local anti-discrimination agency or an attorney in your state. For more information, see our page on filing a complaint.

16. How much time do I have to file a charge of discrimination?

Because there are many sources of state and local laws relating to discrimination based on sexual orientation, there are too many different deadlines to summarize here. To protect your legal rights, it is always best to contact your state or local governmental agency, or an attorney promptly when discrimination is suspected. For more information, see our page on filing a complaint.

This page was updated on December 19, 2008



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