Sexual Orientation And Gender Identity Discrimination In California
California’s anti-discrimination laws offer far more protection to employees than the federal laws currently do. This is particularly true in the area of LGBT rights, as California’s Fair Employment and Housing Act, known as “the FEHA,” protects California employees against discrimination based on sexual orientation and includes, homosexual, bisexual, transgender and heterosexual employees.
Although the federal laws do not currently protect workers from discrimination based on sexual orientation, California employees are protected under California’s laws, which over greater protections than the federal laws do.
Sexual Orientation Discrimination – What is it?
Discrimination based on sexual orientation or gender identity is unfortunately quite common and it can be obvious or subtle. To have a case for discrimination, the employee must have suffered an “adverse employment action” because of his or her sexual orientation or gender identity. An adverse employment action is anything that materially affects the terms or conditions of employment in a negative way and includes:
- Failure to hire
- Withdrawing a job offer
- Promoting a less qualified employee over one who is LGBT
- Paying an LGBT employee less than others for the same kind of work
To prove discrimination, it is important that there be a connection between the employee’s LGBT status and the adverse employment action. In other words, the employee must prove that the employer’s decision was made because of the employee’s sexual orientation or gender identity.
Discrimination Based on Perception or Assumptions
It is also unlawful for an employer to discriminate based on perceptions or assumptions about an employee’s sexual orientation or gender identity, regardless of whether those perceptions or assumptions are accurate or not.
For example, if an employer incorrectly perceives that a straight employee is gay and discriminates against the employee because of that assumption, the employer will be liable.
Harassment Based on LGBT Status
In addition to discrimination, the FEHA protects California employees against harassment because of sexual orientation or gender identity. Harassment can take many forms, including abusive treatment and repeated use of insulting terms or jokes.