Harassed & Fired for Sexual Orientation: Knowing Your Rights

I was harassed at work and fired for being gay. Is that sex discrimination?

The definition of sex discrimination is expanding to include sexual orientation issues. In fact, some federal courts have already rendered decisions in cases where employees harassed and fired for being gay were allowed success based on claims of sex discrimination.

The significance of this is important. Prior to present times, sexual orientation discrimination had been a difficult matter of discrete protection that often fell outside the parameters of Title VII. in relatively few states, protection existed but not in most. However, now that the EEOC has supported using Title VII to cover claims of sexual orientation discrimination, more cases are reaching courts involving the issue.

What is Sexual Orientation Discrimination?

Sexual orientation discrimination is a form of discrimination aimed at LGBT workers based on stereotypes and biases against those who are gay, lesbian, or bisexual. Such discrimination is prohibited in a number of states including California

At the federal level, there is not yet a comprehensive law explicitly prohibiting sexual orientation discrimination. Recently, however, the EEOC has interpreted the prohibitions against sex discrimination in laws such as Title VII of the Civil Rights Act as inclusive of the right to work free of sexual orientation discrimination.

This means, as part of the legal prohibition against sex discrimination, the EEOC is now enforcing sexual orientation discrimination rights to protect gay workers in almost every area of employment including hiring, firing and compensation. These enforcement rules also afford protection from harassment at work and protection from retaliation based on involvement in discrimination court proceedings, charges and lawsuits.

The EEOC’s Recent Declaration

According to the EEOC, LGBT workers are protected under Title VII and many other laws offering protection from sex discrimination such as the ADA and even Title IX of the Civil Rights Act addressing discrimination in education.

Currently, the EEOC enforces Title VII in a very special way. It expands the dictates of Title VII’s prohibition on sex discrimination to include protection for workers from gender identity and sexual orientation discrimination. The agency’s rationale – that this is consistent with Supreme Court rulings outlawing gender stereotypes – significantly broadens the scope of the existing discrimination laws.

This is an important expansion of rights for LGBT workers. To back up its conclusions, the EEOC cites several court decisions where, over the years, the legal system has expanded the definition of sex discrimination to include both gender identity and sexual orientation.

Sexual Orientation Discrimination in the Circuit Courts

Primarily decisions from the 6th, 9th and 11th circuits have formed a foundation of protections that courts look to in order to apply Title VII provisions to gender identity and sexual orientation cases. These decisions in conjunction with the EEOC’s enforcement decision form the crux of expansive rights under existing laws for the LGBT worker community.

Additionally, much of the recent drama involving transgender rights in bathrooms is very much related to the issue of sex discrimination as gender identity and sexual orientation discrimination. For instance, a recent case G.G. ex rel Grimm v. Gloucester County School Board, ruled that Title IX obligates schools to allow students to use restrooms aligned with their gender identity using rationale similar to that of the EEOC regarding gender stereotypes.

What’s happening at the state level?

While at the federal level, courts have shaped and defined gender identity and sexual orientation discrimination as sex discrimination, the question remains how are states handling the issue?

Many states take a liberal approach when it comes to LGBT discrimination at work. A primary example is California, whose provision on LGBT worker discrimination is perhaps the broadest in scope in the nation. California state laws explicitly protect workers on the basis of gender identity and sexual orientation discrimination and take this one step further. Workers are also protected from an employer’s perceptions of a worker’s sexual orientation or gender identity, even if those perceptions are in error.

California has had laws explicitly protecting workers from both gender identity discrimination and sexual orientation discrimination since 1993 and 2003 respectively, but it’s not the the only state involved. Nineteen other states have similar statewide nondiscrimination laws on the books and three other states at least prohibit sexual orientation discrimination statewide. These include New Hampshire, New York and Wisconsin. The District of Columbia also prohibits only sexual orientation discrimination.

Each of the remaining states currently have no statewide protections for LGBT workers.

If you’ve been harassed at work and fired for being gay…

Asserting your rights under federal and state law as a gay worker begins with knowledge of the ways that courts have begun to interpret prohibitions against sex discrimination. It’s also important to know that the EEOC has begun to enforce Title VII as an important protection against LGBT worker discrimination.

Taking steps to hold an employer accountable for harassment and illegal termination at either the federal or state level begins with filing a charge with the EEOC. The agency will conduct an investigation into such claims before determining whether to provide representation in court on the employee’s behalf.  An employee may find his or her own attorney for representation court only after the EEOC issues a Notice of Right to Sue.

Being Harassed and Fired at Work for Being Gay is Sex Discrimination

The development of legal protections for LGBT workers is complex. An experienced attorney familiar with the progression of recent events and rulings on the issue is the best resource for the justice you deserve according to the law. Even at its earliest stages, a gender identity or sexual orientation dispute can be best handled with an attorney by your side.

If you’ve been harassed at work and or fired being gay, know that you have the right to hold your employer accountable, and contact your attorney as soon as possible to help get the justice you deserve.

Manuela Varela

Relations Manager

Manuela Varela has been with Shegerian & Associates since August 2022. She is responsible for outreach and marketing on behalf of the firm and manages relationships between firms and referring attorneys. She is also responsible for developing business opportunities and affiliations. Manuela graduated from Loyola Marymount University with a degree in Economics and Political Science.