If you are being bullied at work due to your identity as LGBTQ+, you may be experiencing illegal harassment. An inclusive workplace is defined by equal treatment of employees pertaining to all genders and sexualities.
Despite California law, many employees struggle with a hostile work environment created by homophobia amongst their coworkers, supervisors, or even bosses. In a survey conducted by the UCLA Williams Institute, more than 45% of employees report hearing anti-LGBT remarks made by their colleagues. Furthermore, the survey states that “almost one in four (24%) employees report that LGBTQ people are treated unfairly in the workplace.”
The California Fair Employment and Housing Act (FEHA) intends to protect individuals from harassment and discrimination based on sexual orientation, gender identity, gender expression, and marital status (including marriage to same-sex individuals). You may not necessarily need to identify as LGBTQ+ in order to be a victim of such harassment, as the law protects actual and perceived identities.
Concerned that you may be subject to unfair or illegal practices by your employer? Here are common tactics that may help you identify whether you are experiencing mistreatment:
Forms of Harassment and Discrimination
As an employee, unlawful discrimination and/or harassment from your colleagues includes but is not limited to:
Verbal Harassment
- The use of homophobic and transphobic slurs or microaggressions: Slurs in the workplace are prohibited and discriminatory. Microaggressions may come off as subtle, negative remarks about one’s person or appearance. This may consist of frequent inappropriate comments or questions about one’s body or relationships.
- Sexual Harassment: Pursuing claims of sexual harassment are not limited to physical contact— continous, verbal harassment on the basis of one’s sex also violates California law. Sexually charged comments, unwanted sexual advances or requests, and offensive comments about your gender or sex are prohibited, regardless of whether they are made by an opposite or same-sex individual.
In many instances, transgender employees are questioned by colleagues about their sexual anatomy, which is an invasion of privacy and is a targeted comment on the basis of their gender identity. Incessant, severe remarks that lead someone to feel intimidated or unable to perform their job duties may be sexually harassing.
- Intentional misgendering: Misgendering can include the use of incorrect pronouns, despite the disclosure and correction of an individual’s preferred gendered terms. For example, if you identify as non-binary (i.e. a term referring to gender identities or presentation outside the male/female gender binary) and use “they/them” pronouns, the deliberate and continued use of “she/her” or “he/him” pronouns is considered misgendering.
- Intentional Deadnaming: Deadnaming is the act of referring to transgender or non-binary individuals by their birth name, rather than their chosen/lived name. Deadnaming often goes hand-in-hand with misgendering. Similarly, the repetitive use of your “dead-name” after informing your employer may count as harassment.
Physical Harassment
- Any physical violence or attacks you experience are illegal, which includes any threats or intimidation. Immediate action must be taken for your safety.
- Sexual Assault: Non-consensual sexual contact, and coercion into sexual activity are deemed sexual assault, battery, and/or rape in California.
Discrimination
- Unequal Compensation: This may consist of you being compensated lower than your cisgender, heterosexual colleagues on the sole basis of your gender or sexual orientation.
- Purposeful Outing: You have the right to choose who, when, how, and if you would like to “come out” to someone about your identity. If a colleague knows of your identity and intentionally “outs” you to others without permission, your employer cannot mistreat or discriminate against you in response.
- Denial of Benefits or Care: You should not be denied parental or medical leave based on your relationship with a same-sex partner. California’s Family and Medical Leave Act (FMLA) allows employees of covered employers to take protected, medical leave for one’s self, a spouse, or child. If you would like more information about your rights under FMLA, call 1-866-487-2365. Similarly, your health insurance and healthcare benefits cannot be denied on the basis of sexual orientation or gender.
- Change in Behavior: If you decided to recently come out at work and notice that your colleagues have become colder or begin to exclude you from important projects and meetings, this may be an early sign of hostility. Be on the lookout for worsening behavior, and make written reports to your employer. If these behaviors turn into harmful, explicit action, seek further help.
- Unfair Practices: If you identify as transgender or non-binary and wish to present yourself in a certain way, you should not be forced into a practice that does not align with your identity. For example, if you recently transitioned from female to male and prefer to wear masculine-presenting clothing, you should not be mandated to wear a work uniform, such as a skirt, that is specifically tailored and intended for female-only use.
A hostile work environment may consist of any of the above-mentioned practices. Such an environment may inflict emotional distress, leading to depression, anxiety, and an inability to complete job duties out of fear. Unsafe work conditions can also result in physical distress, such as insomnia, headaches, and more. If you find that you have experienced emotional or physical distress, contact a medical professional.
Once you begin to see the signs of a hostile work environment, it is encouraged that you file a complaint with Human Resources or a supervisor capable of reporting and handling the situation. In the instance where your harasser is your supervisor, contact a higher-up or someone in an equivalent role.
Your HR Department or equivalent must consider your reports. However, if you find that an investigation has not been launched, if your report is disregarded, and/or adequate action has not been taken to stop the harassment, please consider legal assistance.
What if you’ve reported a hostile work environment to HR, and now you’re being retaliated against? FEHA also ensures that you, as an LGBTQ+ individual, cannot be terminated, demoted, or prevented from promotion opportunities on the basis of this protected category. Legal representation can help recover damages inflicted.
Creating Inclusive Environments
How can you and your employer foster an LGBTQ+ accepting, safe workplace for yourself and your colleagues? To be an ally to the LGBTQ+ community:
- It is important that employers address you by your chosen name, upon request.
- Many employers have implemented inclusivity training as part of professional development and should continue to do so.
- You can be supportive of your colleagues by avoiding assumptions of one’s gender. Your perception based on common gender presentations or expressions may not always align with how an individual personally identifies. For example, you can be feminine-presenting but prefer to use “he/they” pronouns.
- If you find yourself unsure of what pronouns to use for your colleague or would like to remain respectful, you can simply ask someone what pronouns they prefer!
- When greeting a newly hired employee, you can introduce yourself with your name, pronouns, and ask for their preferred pronouns in return.
- If a colleague has recently come out as transgender or non-binary, it is not impolite to ask which pronouns they would like to be referred to with! Generally, people appreciate that you ask how they identify, as it avoids confusion and unintentional misgendering.
- If you ever forget or slip up on the correct pronouns, be sure to apologize! Ignoring the slip-up may make your actions seem intentional.
- Be Cautious: Just because you know that someone identifies as LGBTQ+ does not mean that others do! It is not your place to share whether your coworker identifies as gay, lesbian, trans, etc.,.
- Normalize the use of saying “partner” when referring to your significant other! “Partner” is a gender-neutral term that can be used by all. Many often assume that “partner” is exclusively used by LGBTQ+ couples to avoid disclosing the gender of their significant others, but this is not the case! “Partner” can be used for heterosexual relationships in the same way. The increased usage of “partner” by heterosexual individuals is often seen as a sign of allyship, as it helps debunk the idea that anyone who uses the term must be LGBTQ+.
Your Next Steps
Reaching out for help is a brave, first step. Here are your options:
You may choose to file a complaint against your employer with the California Civil Rights Department (CRD). The CRD is a state agency capable of enforcing FEHA. Visit the Civil Rights Department website for more information on the complaint process or call 1-800-884-1684. You can also find a step-by-step guide on filing a CRD complaint here.
Similarly, the U.S. Equal Employment Opportunity Commission (“EEOC”) is a federal agency capable of enforcing the 1964 Civil Rights Act and beyond. If you would like to learn more about discrimination charges under the EEOC, visit their website, or call 1-800-669-4000.
If you identify as part of the LGBTQ+ community (or are perceived as such) and believe you are being discriminated against or harassed by your employer, please contact our team at Makarem & Associates for a consultation. Our firm can be reached via phone at 310-312-0299, or you may utilize our live chat feature to submit an inquiry. Get the help you need today. You deserve to be seen and heard for the person you are.
