Gender and Sexual Orientation Discrimination

WE FIGHT INJUSTICE IN THE WORKPLACE

• Common Examples of LGBT Discrimination

• How Do You Prove Workplace Discrimination?

• What Remedies are Available to Those Who Have Been Discriminated Against?

Los Angeles Gender and Sexual Orientation Discrimination Attorney

Believe it or not, discriminating against someone on the basis of sexual orientation or gender expression is still legal across much of the United States. California law has interpreted the sex and gender protections of the Civil Rights Act to include those who do not conform to standard male and female gender roles.

Today, the LGBT community enjoys the same protections that protect us all from racial and sexual discrimination, but since the laws are California laws, lawsuits for LGBT discrimination cannot be filed in federal court.

If you have been the victim of workplace harassment on the basis of gender, gender expression, or sexual orientation, you do not have to accept this conduct. You are entitled to file a complaint with your HR department, and if you do not like the way they handle the investigation, you can file a lawsuit against the company. Below, we will discuss this type of discrimination and when it is actionable.

California LGBT Discrimination Laws in the Workplace

In California, The Fair Employment and Housing Act (FEHA) prevent discrimination against the LGBT community in the workplace. This means that someone’s sexual orientation or gender expression cannot be used as the basis for denying them either housing or employment, offering or not offering a promotion, or fostering a work environment that is hostile to the gay and trans communities. It means that they are protected from bullying in the workplace.

What Practices Does FEHA Ban?

FEHA makes it unlawful for employers or landlords to discriminate against the LGBT community. But what specifically does this entail? The provisions of FEHA make it illegal to discriminate:

• In advertisements for job openings
• During job interviews or during the application process
• While determining promotions, transfers, compensation, or separation of employees
• In working conditions

Common Examples of LGBT Discrimination

• Hiring, promoting, or a less-qualified applicant because the other applicant is gay or transgender
• Preventing an employee from accessing resources available to other employees on the basis of their sexual orientation or gender expression
• Denying access to education or training programs on the basis of discrimination
• Harassing or retaliating against an employee who files a complaint
• Fostering a culture of bullying toward employees who are part of the LGBT community

What Remedies are Available to Those Who Have Been Discriminated Against?

If you do choose to file a lawsuit and your lawsuit is successful, you could be entitled to:

• Recoup your attorney’s fees
• Recover your back pay
• Recoup out-of-pocket expenses
• Recover damages for emotional distress
• Recover future lost earnings
• Rehiring at your old position
• Punitive damages

You can essentially get anything that was denied to you based on discrimination. Additionally, your company may be forced to institute policy changes that are in line with California’s tough anti-discrimination laws. This may include requiring that all staff get training at the company’s expense.

Proving Workplace Discrimination

Proving that discrimination was used as the basis for a work-related decision can be quite challenging, even in California. The court requires evidence that discrimination occurred and employers and their companies often attempt to argue that there was some other pretense involved in the decision to promote, hire, or fire a very qualified applicant.

There are several elements to a successful discrimination lawsuit. You will need to prove all of them.

• You were discriminated against on the basis of a protected characteristic. The first element is the allegation. You are alleging that your employer used illegal and discriminatory hiring, promoting, or firing practices and this directly impacted your advancement in the company.
• You are qualified for the position and in good standing with the company. Even if discrimination exists, you need to prove that you were more than qualified for the position that you were passed up for and that the individual to whom the position was given is less experienced or capable than yourself. The employer will almost always try to justify their decision by criticizing your work contributions.
• The discrimination has had a material impact on your employment. This can include simply not getting a raise or promotion or experiencing conduct that a reasonable person would find abusive and thus making it more difficult to conduct your business in peace.

Elements that can be provided to bolster your allegation include:

• Lack of transparency or objectivity in decision-making process. If you can show that the decision-making process that impacted your employment did not conform to the company’s own guidelines, then this can be used as evidence that the selection process was discriminatory.
• There is a pattern of unfair treatment. If there is a pattern of unfair treatment, your attorney will investigate the situation and show that others in the LGBT community were also passed up for promotion or had individuals who were less qualified placed in positions of power over them.

Proving Wrongful Termination in California

Almost every discrimination lawsuit goes something like this. An employee files a grievance with their company because they believe that someone who is less qualified for a position was promoted over them based on discrimination. The employer provides some pretext for that decision that is non-discriminatory (such as poor workplace performance). The ball is now in the plaintiff’s court to show that the pretext is only a pretext.

Your Los Angeles employment discrimination attorney would go through the employment records of both you and the individual who was given the promotion and show that your qualifications exceeded the individual to whom the position was given. We will also subpoena employment records of other individuals with your protected characteristic in an attempt to establish a pattern of discrimination against LGBT employees.

Hostile Work Environment Lawsuits

A completely separate (but similar) issue is an allegation that a work environment is “hostile” to workers with a protected characteristic. One of the most famous examples of a hostile work environment became the inspiration for the movie North Country featuring Charlize Theron in the lead role. In the movie, the first women to work at a coal mine are sexually harassed by the men who work there and it becomes the basis for a landmark decision that extended sexual harassment protections from the Civil Rights Act.

It was also a hostile work environment lawsuit. In a hostile work environment lawsuit, the plaintiff alleges that chronic and pervasive bullying, unwelcome comments, unwelcome sexual comments, crude jokes, or otherwise intimidating behavior makes them afraid to come into the workplace. While some acts are so upsetting that they do not require proof of chronic or pervasive conduct, the majority of hostile work environment lawsuits involve a culture of discrimination that makes it very difficult for individuals with a protected characteristic to do their job safely and peacefully.

In California, the standard for determining whether a work environment is hostile or not depends on three variables. Would a reasonable person believe that the conduct was abusive? Did the conduct cause emotional distress or cause the worker to be afraid to come into work? Was the conduct pervasive or serious enough to be actionable?

Proving a Hostile Work Environment

Hostile work environments are complex. You will almost certainly need to establish a pattern of unwelcome behavior that borders on or is indistinguishable from bullying. A single off-hand remark that you find to be offensive will not be enough to prove a hostile work environment lawsuit. You must show that a pattern exists.

How do hostile work environment lawsuits usually go? An employee who has been the target of unwelcome comments by one or more employees files a complaint with their human resources department or a manager after experience conduct that they feel is unwelcome or abusive. The company must then investigate the claim, make a determination as to what happened, and take any remedial action necessary to prevent the unwelcome conduct from occurring again. When they allow the behavior to persist, it is then that you can file a hostile work environment lawsuit against your employer.

Asserting Your Rights in the Workplace

In California, every individual is entitled to a safe and comfortable place in which to do their work. Supervisors and other employees are not allowed to discriminate or harass their coworkers on the basis of a protected characteristic. This includes (although it is not limited to) making harassing comments, making cruel jokes, using slurs, using their social media pictures to create belittling memes, or otherwise not availing them to the same resources and opportunities that are available to all their employees.

If any of this sounds familiar, then you should fight back. Call a Los Angeles employment and discrimination attorney today and find out more about how we can help.

Find a California Employment Lawyer Today

If you have been the victim of harassment or discrimination on the basis of your sexual orientation or non-binary gender expression, you may be entitled to recover damages from your employer. Wright Attorneys Law Group has helped several Los Angeles-area employees reconcile the illegal conduct of their employers. Reach out today and we can begin building a timeline for your discrimination claim.