Sexual Orientation Discrimination
As more and more people are “coming out of the closet” and proudly announcing their sexual orientation as gay, lesbian, bisexual, or transgender, federal law is keeping up with these changes to make work environments friendlier.
Under the Equal Employment Opportunity Commission (EEOC), it is illegal to subject an employee to workplace harassment based on their sexual orientation or gender identity. This law applies to workplaces that have 15 or more employees. The harasser does not need to be the victim’s direct supervisor. It can be a supervisor in another area, a co-worker, a vendor, or a customer.
Sexual orientation discrimination and harassment can include offensive or derogatory remarks about sexual orientation, such as being gay, as well as transgender status or gender transition. Believe it or not, sexual orientation discrimination can even include remarks about someone being heterosexual, or straight, especially if the person is working in an environment dominated by homosexuals. However, this is not the norm.
Transgender employees should be aware that accidental misuse of their name and pronouns does not violate the EEOC. However, intentionally using the wrong name and pronouns could constitute a hostile work environment. Simple teasing and one-off incidents, on the other hand, are not illegal.
Examples of Sexual Orientation Discrimination
Sexual orientation discrimination can happen in many forms, as it is not limited to harassment. Here are some common examples of it in the workplace:
- Basing workers’ performance reviews on sexual orientation
- Handing out promotions based on a favorable sexual orientation
- Showing preferential treatment to heterosexuals
- Discriminating based on an assumed sexual orientation, whether or not it is true
- Insulting someone, threatening them, or type of bullying based on sexual orientation
Employers’ Responsibilities
Generally, employers are not allowed to refuse to hire, fire, demote, or discriminate in any other way based on customer preference. What this means is that the law and employee rights come first. If customers or clients want to discriminate based on sexual orientation or gender identity, then that is their problem.
Employers cannot limit a worker’s job duties based on actual or perceived customer preferences. They also cannot tell a transgender person what to wear or how to act. Harassing an employee based on their gender identity is considered sex discrimination.
Whether an employer has separate bathrooms, unisex bathrooms, or single-use ones, they cannot deny an employee access to it if it corresponds to the employee’s gender identity. This means that transgender employees cannot face discrimination for their gender identity. Again, this would be considered sex discrimination.
Types of Sexual Orientation Discrimination
There are four main types of sexual orientation discrimination:
- Direct discrimination. This is when the discrimination is directed toward you specifically. An example would be an employer refusing to offer a job to a woman because she mentions her girlfriend and the employer does not want to hire lesbians.
- Indirect discrimination. This is when the company has a policy that indirectly discriminates against you. This may include not offering benefits to same-sex partners.
- Harassment. Harassment in the workplace occurs when a person is humiliated or offended by someone’s remarks regarding their sexual orientation. This may include slurs directed toward the homosexual community or threats from an employer. Employers must make a reasonable effort to prevent harassment in the workplace.
- Retaliation. If an employer treats you badly for making a claim against them for sexual orientation discrimination, then that is called retaliation. Employers cannot legally retaliate against a worker for a protected activity such as exercising their legal rights. Retaliation may include any type of punishment, such as demotion, poor performance review, pay cut, and termination.
Exceptions
There are several situations in which a difference in treatment may be legal:
- Being of a particular sexual orientation is an occupational requirement and is therefore essential for a job. If the employer runs an LGBT-based service, such as a helpline for teens, then those who work in this environment must be gay or lesbian.
- If an organization is trying to encourage gay, lesbian, or bisexual people to participate in a role or activity, then the message would be better understood coming from an employee who shares this sexual orientation.
- Some religions are strongly against homosexuality. Because of this, they may not allow homosexuals to be employed in certain positions. For example, United Methodists allow LGBT people to be members but “self-avowed practicing homosexuals” cannot be clergy.
What to Do if You Are Facing Discrimination
If you are facing sexual discrimination orientation in the workplace, it’s a good idea to first discuss the situation with the harasser. Tell them that their remarks are not welcome and ask them to stop. If the discrimination persists or you do not feel comfortable speaking to the harasser, tell your employer. They legally must take the appropriate steps to remedy the situation so you are no longer discriminated against or harassed in the workplace.
If nothing changes, you should then file a charge with the EEOC. Sexual discrimination orientation and almost all other laws enforced by EEOC require you to file a charge before you can file a lawsuit for unlawful discrimination. The process for doing so can be found here.
There are strict time limits for filing a charge. In Illinois, you have 300 days to file a charge. The clock starts ticking when you first face discrimination, so act quickly, Don’t allow the discrimination to continue for too long or your legal rights may be barred.
Once you file your charge, the EEOC will investigate. They will then provide you with the results of their investigation and let you know if you can proceed with a lawsuit. If so, you should reach out to an employment law attorney right away. They can assess your case, let you know if you have a valid claim, and let you know the next steps.
Contact Our Chicago Sexual Orientation Discrimination Lawyers
Many employers have become progressive with their policies toward gays, lesbians, bisexuals, and transgender people. However, there are many companies that will discriminate against workers in these protected classes.
Have you been a victim of sexual orientation discrimination in the workplace? If so, seek legal help from North Suburban Legal Service, LLC. Our Chicago sexual orientation discrimination lawyers can assess your case and help you understand your legal options. To schedule a consultation, call (312) 313-4038.
