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Employers should treat all of their employees equally, regardless of their actual or perceived sexual orientation. Treating an employee unfairly because of his or her sexual orientation is a form of discrimination similar to gender identity and sex discrimination.
Although federal law prohibits discrimination based on race, national origin, disability, and other protected categories, it does not cover those who are discriminated against because of their sexual orientation. Even though it is not mentioned in Title VII of the Civil Rights Act of 1964, sexual orientation discrimination is still illegal in some areas because of state or local laws.
Out of the 50 states, 21 have passed laws to protect workers from sexual orientation discrimination in the workplace. Eighteen states, along with the District of Columbia, have laws regarding gender identity discrimination. Although not every state has these laws in place, many cities and counties across the country do have laws that prohibit this discriminatory behavior. Individual employers can also create policies to prevent and punish sexual orientation discrimination at their discretion.
California is one of the many states to adopt sexual orientation discrimination laws. Under California law, sexual orientation is defined as heterosexuality, homosexuality or bisexuality. Employers are prohibited from discriminating against you because of your true sexual orientation or what they perceive your sexual orientation to be. For example, if an employer treats you unfairly because he believes you are homosexual, but you are actually heterosexual, this is discrimination even though you are not homosexual.
FEHA is the legislation that prohibits employers from discriminating against employees because of their gender, gender expression, gender identity, or sexual orientation. Under FEHA, employers cannot take someone’s gender or sexual orientation into consideration when making any job-related decision such as who to hire, fire, promote, demote or assign to a new position. Employers also have a legal obligation to step in and prevent sexual orientation discrimination from occurring in the workplace through educational trainings.
But, FEHA does not apply to employers who have less than five employees. In order to be covered under FEHA and protected against sexual orientation discrimination, you must work for an employer with five or more part-time or full-time employees.
First, you must prove your employer is covered under FEHA by meeting the minimum employee requirement. Then, you must prove the employer’s discriminatory behavior caused you harm. Finally, you have to show the action that caused you harm was motivated solely by your sexual orientation. This means if you lost out on a promotion, in order to claim you were discriminated against because of your sexual orientation, you have to be able to show you were not chosen for the promotion because of your sexual orientation and not because someone else was better suited for the position.
Sexual orientation discrimination cases are not as common as other discrimination cases, which means it may be difficult to find an attorney with experience representing victims. If you believe you are a victim of sexual orientation discrimination, contact Shegerian Conniff to speak with a team of experienced and knowledgeable employment law attorneys.