Sexual Orientation Discrimination In The Workplace
It is illegal in California for an employer to discriminate against an employee because of that employee’s sexual orientation or perceived sexual orientation. California law makes it illegal to discriminate against workers because they are heterosexual, homosexual, bisexual or transsexual/transgender. Workplace discrimination and harassment usually involve:
– Termination of employment
– Refusal to hire
– A hostile workplace
– Refusal to promote
These traits may include personality, clothing, hairstyle, speech, mannerisms and demeanor, and secondary sex characteristics such as vocal pitch, facial hair and body size or shape. Thus California law protects not only transgender individuals but also men who are “perceived” as being too “feminine” and women who are “perceived” as being too “masculine.” While California law generally allows for the enforcement of unisex uniform policies and grooming standards, employers may not apply different standards for men and women. For example, a policy prohibiting the wearing of eye makeup should be lawful if it is enforced in a nondiscriminatory manner, but if an employer does not generally prohibit the wearing of eye makeup, it cannot prohibit a male employee from doing so. Similarly, while an employer should also be able to prohibit, in a nondiscriminatory manner, provocative, outlandish or flamboyant dress in the workplace, it is clear that regardless of the employer’s or its customers’ personal tastes or preferences, cross-dressing itself may not be prohibited.
Perceived Sexual Orientation
It is also illegal in California for an employer to discriminate against an employee on the basis of that employee’s perceived sexual orientation. So if an employer believes an employee is gay, and fires him because of that, it is illegal whether or not the employee is actually gay.
Sexual Orientation Discrimination and Combination With Other Laws
Frequently the same actions that violate the laws against sexual orientation discrimination violate other laws as well. It is possible that an employer who is discriminating on the basis of sexual orientation is also discriminating on the basis of gender.
For example, a male employer asks a lesbian employee to sleep with him. She says no, and mentions her sexual orientation. He says that he won’t employ a lesbian and fires her. It could be argued that he has also discriminated on the basis of sex, because it’s illegal for him to fire her just because she didn’t sleep with him. That would be a form of sexual harassment.
Damages for Sexual Orientation Discrimination
The law against sexual orientation discrimination is very new, so it is not clear what damages can be received in court. However, it appears that employees can recover their lost wages including future loss of wages and other benefits, emotional distress damages, and punitive damages. Under the Fair Employment and Housing Act (FEHA), employees may also recover attorneys’ fees and costs.