As most of us know, it’s unlawful for an employer to discriminate against workers on the basis of sexual orientation or gender identity. This is true in both public and private workplaces in the United States.
Yet LGBTQ+ employees continue to face disproportionate amounts of discrimination in the workplace. In a 2023 study conducted by the Center for American Progress (CAP), one in three LGBTQ+ individuals reported facing some kind of discrimination in the past year based on their sexual orientation or gender identity. Although CAP has a well-known liberal bias, its studies are well-researched and credible, so we are confident that this troubling statistic is accurate.
Employers – whether business owners or managers – are required to understand what constitutes discrimination based on sexual orientation or gender identity and what laws govern your business. It’s important both to prevent it from occurring in your workplace and to protect your company from preventable liability and exposure. Our goal, then, is to empower you to protect your company and yourself from claims.
What’s Discrimination Based on Gender Identity or Sexual Orientation?
An individual is discriminated against based on their gender identity or sexual orientation when she’s treated unfairly or less favorably than others because of her sexual orientation or gender identity. Similarly, discrimination may exist where an employer’s policies have a significantly negative impact on employees or applicants because of their sexual orientation or gender identity.
Sexual orientation is an individual’s physical, romantic, or emotional attraction to people of the same and/or opposite gender.
Gender identity refers to someone’s internal sense of their own gender. Gender identity may or may not correspond to the sex assigned to that individual at birth. It also may or may not be clear to others.
Employee Rights under Federal Law
The federal law that governs employment discrimination generally is referred to as Title VII. It doesn’t specifically mention the terms sexual orientation discrimination or gender identity discrimination. However, in 2020, the Supreme Court ruled that discrimination based on sexual orientation or gender identity is a form of sex discrimination and is prohibited by Title VII.
Under Title VII, an individual can’t be discriminated against because of their sexual orientation or gender identity in nearly all aspects of their employment, including:
- Hiring;
- Firing;
- Promotions or demotions;
- Discipline;
- Training;
- Assignments;
- Pay, overtime, or any other type of compensation; and
- Any other terms, conditions, or privileges of employment
Further, prohibiting a transgender person from dressing or presenting consistent with their own gender identity constitutes discrimination.
The Equal Employment Opportunity Commission (the EEOC) long has recognized that employers can’t deny an employee equal access to bathrooms, locker rooms, or showers that correspond to the employee’s gender identity.
Employee Rights Under New York State Law
New York’s laws on discrimination in the workplace are nearly identical to that of Title VII. Under the New York Human Rights Law, an individual cannot be discriminated against in:
- Hiring;
- Firing;
- Promotions or demotions;
- Training;
- Pay, other compensation, or any terms of employment; and
- Any conditions or privileges of employment
The New York Human Rights law also similarly has prohibitions in place for discrimination specifically against transgender individuals. Just like under federal law, in New York, an individual cannot be discriminated against for presenting consistent with their own gender identity.
Unlike Title VII, however, New York law explicitly mentions the terms gender identity and sexual orientation. New York law also includes the term gender expression, which is defined as a person’s gender presentation and includes mannerisms and appearance.
Examples of Sexual Orientation and Gender Identity Discrimination
Our clients frequently ask us for real-life examples. Often, that’s the best way to understand a law, especially if the issue is complex. Here are some examples of an employer failing to comply with the law around sexual orientation or gender identity discrimination in the workplace:
- Firing someone because the employee is in a same-sex relationship;
- Paying someone less or giving them less-favorable shifts because of the employee’s sexual orientation;
- Deliberately using the wrong pronouns or name to refer to the employee;
- Asking personal questions about the employee’s gender transition or gender identity; and
- Disclosing or threatening to disclose the employee’s sexual orientation or gender identity when the employee hasn’t made that information public
This list isn’t comprehensive, and it’s important to note that many more examples of discrimination based on sexual orientation or gender identity exist.
How to Avoid Gender Identity or Sexual Orientation Discrimination Claims
First, employers should have clear and understandable – and written – policies that prohibit all types of discrimination. Next, ensure that the policies are circulated among team members, and it’s a best practice to have employees sign off, acknowledging that they received them. Third, your policies must be properly enforced.
Definitely regularly review the policies so that they can be updated if the law is modified or changed. As with many things around employment law, both New York and the federal government frequently change the laws, often mandating more protections for employees.
The best workplaces also have trainings in place. Effective trainings educate employees on what constitutes discrimination and how to avoid it. Having periodic trainings is an easy way to make sure your employees are always up to date on what behaviors to avoid and how/where to report, and it reduces the company’s liability as a result.
In the hiring process, it’s important to guarantee that your selection criteria are objective and related solely to the necessary duties, functions, and competencies of the job. This eliminates the risk that your selection criteria disproportionately exclude anyone because of their gender identity or sexual orientation.
At the end of the day, an informed workplace with clear policies on prohibited conduct, and with a reporting process in place, is going to best protect your company.
What To Do if An Employee is Accused of Discrimination
If a formal or informal report or complaint is lodged against one of your employees or against the company, you should conduct a prompt and thorough investigation. These investigations should be conducted for every complaint, every time. Why? Because claims of discrimination, even if initially unfounded or innocuous, can build over time. Stated differently, if an employee feels discriminated against today, and something else – even with a different team member – happens next week, next month, or next year, the original employee may be able to establish a pattern of discrimination at your company. You don’t want that to happen.
Of course, if the investigation reveals inappropriate conduct, you should take immediate and effective remedial action. A remedial action is something that effectively counteracts the inappropriate behavior. This can be discipline, implementing a performance improvement plan, or, in more drastic cases, termination.
No matter the disciplinary action, you must enforce consequences consistently and equally against any individuals found to be discriminating or harassing another employee. No one wants to be accused of giving preferential treatment to an individual who was found to be discriminating or harassing others at work.
Likewise, it’s critically important to avoid retaliation against the reporting individual. Retaliation occurs when a coworker or the employer itself takes an adverse action – whether that’s termination or even simply giving them the so-called cold shoulder – against the reporter/complainer.
Retaliation is yet another legal claim that an employee can make as a result of perceived discrimination.
Whew, It’s A Lot!
We know this area of the law is complicated. There are so many nuances. Often in areas of gender and sexual identity discrimination, some of the concepts are new to certain employers.
That’s where we can help. If you have questions or need some guidance on how to make your company a best place to work for all employees, contact us at 716.839.9700 or info@coppolalegal.com.
