What Can You Do About Sexual Orientation Discrimination?

Sexual orientation discrimination happens regularly – and although a U.S. Supreme Court case in 2020 ruled that unlawful discrimination based on “sex” includes sexual orientation and gender identity, it continues. But what can you do if you experience sexual orientation discrimination, and is there any legal recourse? This guide explains what you can do about sexual orientation discrimination in the workplace.

What Can You Do About Sexual Orientation Discrimination?

Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination (it’s listed in the act as discrimination based on sex, which the Supreme Court ruled included orientation and gender identity). And if federal laws weren’t enough, the state of California has its own protections for LGBTQIA+ people: The California Fair Employment and Housing Act, or FEHA.

FEHA and Title VII make it unlawful for an employer to do any of the following based on a person’s sexual orientation, gender identity or gender expression:

• Fire or demote
• Fail to hire
• Fail to promote
• Harass
• Otherwise discriminate, such as by paying a lower wage or denying benefits that are available to other workers

Most employees in California are protected under FEHA and Title VII – but unfortunately, certain employees of religious entities and employees of very small employers (those with fewer than five) aren’t.

Related: California laws against discrimination in the workplace

Do You Have to Tolerate Sexual Orientation Harassment?

You absolutely do not have to tolerate sexual orientation harassment, which is a form of discrimination. When an employer or a co-worker with the employer’s knowledge harasses you – that is, they subject you to an offensive, hostile or intimidating work environment – because of your sexual orientation, gender expression or gender identity, and when that harassment is unwelcome and interferes with your ability to perform your job, it’s against the law. That’s true even if someone is harassing you based on their perception of your sexual orientation, gender expression or gender identity.

You have legal recourse if someone is harassing you due to your sexual orientation.

Related: Examples of discrimination in the workplace

Does California Law Recognize Non-Conforming and Non-Binary Identities?

California law does recognize gender non-conforming and non-binary identities. The law requires employers respect all gender identities and expressions, including those that change over time.

What if My Employer Addresses Me By the Wrong Name or Pronouns?

In the state of California, you have the right to be called your name – the name you live under – as well as your pronouns. That’s true even if you have not legally changed your name and gender marker.

When an employer – or a co-worker, with the employer’s knowledge – continues to intentionally call you the wrong name or use the wrong pronouns for you, it could constitute unlawful harassment.

Related: How to file discrimination complaints against employers

5 Actions You Can Take if Someone Discriminates Against You Because of Your Sexual Orientation

If someone discriminates against you or harasses you because of your sexual orientation (or because of their perception of your sexual orientation), there are a few actions you can take:

1. Address the situation with the person directly, in the case of harassment. Sometimes people aren’t aware that their conduct is unwelcome or that it’s creating a hostile work environment.
2. Go to your supervisor about the issue. If your supervisor is the issue, go to their supervisor.
3. Follow your company’s policies about reporting harassment and discrimination, which you can usually find in your employee handbook or on your company’s website.
4. Contact an attorney. This may be one of the few actions you can take if you were discriminated against in the hiring process.
5. File a complaint with the Equal Employment Opportunity Commission or the California Department of Fair Employment and Housing. (An attorney can give you guidance with this as well.)

Do You Need to Talk to a Lawyer About Sexual Orientation Discrimination?

If you’ve been discriminated against because of your sexual orientation, we may be able to help you. Call us at 818-230-8380 or fill out the form below to schedule a free consultation with an experienced, caring and committed discrimination attorney in Los Angeles.