Sexual Orientation Harassment

Harassment and discrimination in the workplace are wrong, particularly when based on characteristics such as gender identity and sexual orientation that have nothing to do with a person’s qualifications or their performance as an employee. Fortunately, California has enacted laws that protect those who are fired or harassed at work because of who they are attracted to or because they exhibit traits not stereotypically associated with their sex at birth.

While the federal Title VII of the Civil Rights Act of 1964 (42 United States Code section 2000e, et seq.) (Title VII) prohibits discrimination in the workplace based on race, color, religion, sex and national origin, it does not specifically prohibit discrimination based on sexual orientation. Fortunately, recent court opinions have found that discrimination on the basis of sexual orientation violates Title VII, thereby providing protection for the rights of LGBTQ+ workers throughout the United States. This is an important development, as several states still have not enacted laws that protect workers from discrimination based on sexual orientation or gender identity, and bringing a lawsuit under Title VII in a federal venue is the only recourse for workers in those states who have been discriminated against or harassed based on sexual orientation or gender identity.

In contrast, for many years FEHA has specifically prohibited discrimination and harassment based on an individual's sexual orientation. California Government Code section 12940(j). Moreover, while no law will actually prevent discrimination or harassment in the workplace, FEHA’s antidiscrimination and antiharassment provisions, which are more expansive than Title VII, act as a deterrent. FEHA has a more robust list of protected characteristics. FEHA applies to more employers. FEHA provides broader remedies for affected employees. FEHA requires employers to give notice to employees of FEHA’s antidiscrimination and antiharassment provisions and requires employers to create a prevention policy. See California Code of Regulations, title 2, section 11023. Informing employees about their rights and what behavior is unlawful serves to reduce behavior that poisons the workplace environment, as reviewing this information gives individuals the opportunity to reflect upon and rethink their past prejudices and biases.

Sexual orientation under FEHA is defined as "heterosexuality, homosexuality, and bisexuality." California Government Code section 12926(s). In addition, while an employer may “require an employee to adhere to reasonable workplace appearance, grooming, and dress standards ... an employer shall allow an employee to appear or dress consistently with the employee’s gender identity or gender expression [regardless of whether the perceived gender characteristics are different from those traditionally associated with the individual's sex at birth].” California Government Code section 12949. California’s prohibition on discrimination and harassment based on an individual's sexual orientation extends to the arenas of housing (including housing shelters), education, and public accommodations. California also defines “hate crime” to include criminal acts committed in whole or part based on such actual or perceived characteristics of a person as sexual orientation. California Penal Code section 422.55.

FEHA also prohibits discrimination and harassment in the workplace based on other protected characteristics such as race, religion, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, and age.

To successfully bring a claim for wrongful termination based on the employee's sexual orientation, an employee must show that:

• She was a member of [a particular sexual orientation],
• She was subjected to unwelcome harassment,
• The harassment was based on the plaintiff's sexual orientation,
• The harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment, and
• The [employer or entity] was liable for the harassment. Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876 (discussing racial harassment).

If the harassment complained of was perpetuated by a supervisor, then the employer of that supervisor is strictly liable for the harassment. However, if a coworker was responsible for the harassment, the employer will be liable under FEHA only if the employer knew about the harassment or at least should have known about the harassment. State Department of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040-41.

While any termination based on sexual orientation that gives rise to a hostile work environment would be prohibited, the California judiciary's stance on same-sex sexual harassment is currently unclear. One district in California has held that actionable same-sex harassment requires sincere sexual intentions. Kelley v. Conco Companies (2011) 196 Cal.App.4th 191. Another district, however, has held that the sexual harassment does not have to reflect actual sexual intentions in order for sexual harassment to have occurred. Singleton v. United States Gypsum Co. (2006) 140 Cal.App.4th 1547. Despite this ambiguity, same-sex sexual harassment will often still contribute to a showing of sexual orientation harassment.

After all, because FEHA also forbids sexual harassment at the workplace, many instances of sexual harassment may overlap with harassment motivated by the victim's sexual orientation. For instance, it is foreseeable that one worker might mock another worker for his or her descriptions of sexual encounters with members of the same sex, which would fall under both categories, sexual harassment and sexual orientation harassment, as the comment reflects attention toward both the sexual activities of the employee as well as the gender of the partner in the activity. Either or both of these interpretations would presumably be viable reasons to bring a claim against the harasser if the harassment resulted in creating a hostile work environment.

Harassment due to an employee's sexual orientation is normally a separate cause of action from discrimination due to an employee's sexual orientation. However, harassment is actionable as "discrimination" if it is "so severe or pervasive as to alter the conditions of [the victim's] employment and create an abusive working environment." Clark County School District v. Breeden (2001) 532 U.S. 268, 270. Thus, pervasive harassment about one's sexuality or sexual orientation may be enough for two separate claims, depending on the facts of the case.

If you have experienced harassment at your workplace based on your sexual orientation or others' perception of it, or if you believe your employer or former employer has otherwise violated your rights, call the experienced employment law attorneys at Kokozian Law Firm, APC or Contact us via our online form.