Allred, Maroko & Goldberg

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Employment Protections For LGBT Employees

Federal laws like Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963 and Title I of the Americans with Disabilities Act of 1990 provide broad blanket protections to U.S. employees against suffering various types of harassment and discrimination. Currently, however, no federal laws protect employees who identify as lesbian, gay, bisexual or transgender.

While some U.S. Circuit and appeals courts have ruled that Title VII protections include sexual orientation and gender identity, the U.S. Supreme Court has failed to weigh in — leaving many LGBT employees vulnerable.

States Driving Broadened Protections Of LGBT Employees

California is among 19 states that provide full protections for LGBT employees against acts of workplace discrimination and harassment. California’s Fair Employment and Housing Act prohibits “harassment and discrimination because of gender identity, gender expression, transitioning, or sexual orientation.” Additionally, recently enacted, California Senate Bill 396 mandates, amongst other things, that employers with 50 or more employees require those in supervisory roles to complete training on these topics.

According to the nonprofit Movement Advancement Project, nearly 1.5 million employees in California identify as members of the LGBT community. For these employees, workplace discrimination and harassment take many forms, including:

  • Employment decisions based on gender identity and/or expression
  • Failing to use employees’ preferred names and pronouns that correspond to their gender identity
  • Comments about an employee’s appearance or clothing
  • Insensitive or offensive jokes
  • Homophobic or other types of derogatory slurs
  • Failing to allow employees to dress in a manner that corresponds with their gender identity and expression

These types of interactions may be propagated by a supervisor, co-worker, contractor, vendor or customer and take place in person, over the telephone or via email, instant messenger or social media.

California Employers’ Responsibilities -- LGBT Employee Rights

California employers are legally required to take steps to ensure that they comply with the state’s employment laws and prevent LGBT employees from suffering harassment and discrimination at work. In some cases, however, employees in supervisory roles act in ways that violate these laws. For example, a supervisor or manager may:

  • Exclude a co-worker from work assignments or functions based on gender identity, expression or sexual orientation
  • Retaliate against an employee in the form of a poor performance review, job transfer, layoff, demotion or reduction in pay
  • Use language that is derogatory, disparaging or demeaning in some way
  • Initiate unjustified disciplinary action against an employee

Additionally, employers must ensure that LGBT employees have access to restrooms that conform to their gender identity or gender expression. Restrooms must be secure and have gender-neutral signage and designations.

Standing Up For LGBT Employees’ Rights

Workplaces benefit by fostering a culture that is inclusive, accepting, respectful and supportive and by hiring employees with diverse backgrounds and life experiences.

If you are an LGBT employee who suffers or has suffered harassment or discrimination in the workplace, it’s important to reach out to an employment attorney to discuss your situation and legal options. If you choose to take legal action to hold responsible parties accountable, you may be able to recover compensatory and punitive damages.

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Allred, Maroko & Goldberg

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