Federal Law Protects LGBTQIA Workers from Discrimination

This Pride Month, we set out to celebrate recent achievements in employment law and our nation’s progress in protecting LGBTQIA+ employees. At the beginning of June, half of the LGBTQ population in the US lived in a state where they could be demoted, harassed, or fired on the basis of their sexual orientation or gender identity. While California was already protecting queer and trans rights in the workplace, nearly 30 states lacked such laws.

June 15th, the Supreme Court changed that reality in their landmark 6-3 vote to protect lesbian, gay, bisexual, transgender and queer people from discrimination in the workplace. Justice Gorsuch delivered the Court’s opinion that the Civil Rights Act of 1964, which outlaws employment discrimination on the basis of sex, must be interpreted to also protect gay and transgender people. Gorsuch embraced the argument that to discriminate against one’s sexual orientation or gender identity is to inherently discriminate on the basis of sex. For example, the boss who fires a woman for marrying a woman and not a man for marrying a woman is discriminating against the first employee on the basis of sex.

June 15th’s ruling comes after two decades of legal battles laying the foundation for this civil rights win.

Previous developments in LGBQTIA+ Employment Law

In celebrating this win, we celebrate the battles that got us to this point. For example, Husman v. Toyota Motor Credit Corp., 12 Cal. App. 5th 1168 (Ct. App. 2017) helped interpret FEHA to protect LGBT employees. The Fair Employment and Housing Act (FEHA) applies to public and private employers, labor organizations and employment agencies. The FEHA prohibits harassment based on a protected category against an employee, an applicant, an unpaid intern or volunteer, or a contractor. Under FEHA, harassment is prohibited in all workplaces, even those with fewer than five employees.

Husman v. Toyota established that workplace harassment related to a gay employee’s sexual orientation violates The Fair Employment and Housing Act (FEHA) if the harassment was based on “invidious sex or gender stereotyping related to his sexual orientation.”

The court in Glenn v. Brumby, 663. F.3d 1312 (11th Cir. 2011), interpreted the Equal Protection Clause in a win for trans and non-binary workers. The court held that a government agent violated the Equal Protection Clause’s prohibition of sex-based discrimination when he or she fired a transgender or transsexual employee because of his or her gender non-conformity, “whether it’s described as being on the basis or gender.”

LGBTQ Discrimination under California Law: FEHA

Franks v. City of Santa Ana, 735 Fed. App’x 305, 307 (9th Cir. 2018), outlines the standard for harassment based on sexual orientation for FEHA: “To show that harassment is related to gender or sexual orientation for purposes of FEHA, a plaintiff must show that (1) the plaintiff’s gender or sexual orientation is “a substantial factor in the discrimination” and (2) if the plaintiff had a different gender or sexual orientation, the plaintiff would not have been treated in the same manner.”

Case law helps illustrate the what constitutes discrimination on the basis of sexual orientation or gender identity. In Hope v. Cal. Youth Academy, 134 Cal. App. 4th 577 (Ct. App. 2006), the court found ongoing “derogatory remarks based on [employee’s] sexual orientation” amount to a hostile work environment in violation of FEHA. Additionally, the court in Kovatch v. Cal. Cas. Mgmt. Co., 65 Cal. App. 4th 1256 (Ct. App. 1998) said a jury could find that constructive discharge occurred where a supervisor’s repeated homophobic and derogatory remarks created work conditions that were “intolerable based on sexual orientation discrimination.”

Speak to an Experienced California Discrimination Lawyer

While we celebrate these achievements, there is always more work to be done. Have you faced discrimination in the workplace due to your gender identity or sexual orientation? Dedicated, experienced discrimination lawyers at Makarem & Associates in California are best placed to handle your claim and help you obtain maximum damages if you are a victim of harassment at your workplace. Get in touch with Makarem & Associates over the phone at 310-312-0299 for a free consultation or email at [email protected] to receive the right legal counsel.

This is what we do! We have a long track record of success and we know what a winning case looks like. Please give us a call so we can set up a free consultation. Happy Pride!