If you feel you’ve been discriminated at your workplace, been put out to negative employment action, harassment, denial of certain benefits, or even wrongfully terminated because of your sexual orientation, gender expression or gender identity, there is a chance you may have a claim against your employer.
A number of states currently prohibit sex discrimination (presently just over 20) at state legislation level, and even more are looking into enacting such laws.
Wrongful termination due to sexual orientation or gender identity is an evolving area of employment law. Title VII of the Civil Rights act of 1964 (Title VII) is the primary federal law that prohibits such discrimination at the workplace, and is enforced by the Equal Employment Opportunity Commission (EEOC).
Based on Title VII and Supreme Court rulings, the official stance of the EEOC has evolved into saying that discrimination based on both gender identity and sexual orientation are forms of sex discrimination, since they are based on gender stereotypes.
Based on federal legislation, the following are protected from sex discrimination on the job:
- Gender discrimination – protection of both male and female workers from being discriminated based on their gender
- Sexual orientation discrimination – protecting the rights of lesbian, gay and bisexual workers
- Gender identity discrimination – protection of a person regardless of his/her self identification as a man or woman, irrespective of one’s anatomical sex at birth
Transgender men and women have been enjoying more protection as of late, however, courts are not consistent in this matter and oftentimes rule against transgender employees. This is due to the EEOC’s and federal courts’ changing interpretation of Title VII to extend protection to the group.
Federal workers are protected from discrimination based on sexual orientation and gender identity by President Obama’s executive order, signed in 2014.
Important Supreme Court decisions
The case that paved the way for making sex discrimination illegal was Hopkins v. Price Waterhouse from 1989. In this case, Anne Hopkins, a female broker, proved that her former employer discriminated against her, because she didn’t fit the employer’s view of what a woman should look and act like, therefore she was denied a promotion to become partner. It turned out that out of the 622 partners at Price Waterhouse, only 7 were women at the time.
Another, more recent landmark ruling was Obergefell v. Hodges in 2015, where the Supreme Court held that marriage for same-sex couples is a constitutional right, requiring all states to recognize the validity of same-sex marriages and issue marriage licenses.
State level protection against sex discrimination at the workplace
More and more states are enacting laws to prohibit sex discrimination, and to protect the LGBT community. In addition, local communities (with large number of LGBT constituents) have also passed such laws.
The map below from the Human Rights Campaign gives an overview of which states have laws that protect workers from sex discrimination as of August 25, 2016:
Examples of sexual orientation discrimination
There are some common, recurring cases of sex discrimination reported to the EEOC. Feel free to review them below:
- Harassment – When emotional distress is caused by a coworker, supervisor, employer, or even a customer expresses who comments about a person’s sexuality or mannerisms, make sexual jokes, or even show pictures or drawings that present a negative portrayal. As with other forms of discrimination, the seriousness and frequency of harassment plays a role in whether a court would see it as illegal. For example, simple teasing and isolated comments are not considered illegal.
- Different treatment – An employer may discriminate against a member of the LGBT community by not hiring, not promoting, not providing full benefits to the person and his/her family, or even discharging the individual wrongfully.
Oftentimes, discrimination starts to occur when a worker’s true sexual orientation/identity is made public at a workplace. “Coming out”, or telling others about one’s sexual orientation may become the catalyst for discrimination.
Damages in sex discrimination cases
There are a number of remedies available if the court finds evidence of sex discrimination. Under Title VII, combined damages are capped at $300,000. Here are the damages a court may award:
- Back pay
- Front pay
- Out-of-pocket costs
- Emotional distress
- Punitive damages
- Attorney’s fees and litigation costs
Here are a few cases that involved discrimination because of sexual orientation and gender identity. The recency of these cases just goes to prove how this is a newly evolving field of employment law.
- The first ever EEOC suit file to protect a transgender individual happened in 2015. The worker was transitioning from male to female, and the employer (Lakeland Eye Clinic), wrongfully terminated her after she began presenting herself as a woman. The case was settled with a consent decree, and a payment of $150,000 to the aggrieved employee. (Source: EEOC v. Lakeland Eye Clinic)
- Via consent decree, a lesbian woman was given $182,000 through one of the EEOC’s first sexual orientation claims, after proving that she was put out to repetitive harassment at her workplace (IFCO Systems). She complained about the harassment through the company’s complaint hotline, but was fired in retaliation shortly after. (Source: EEOC v. Pallet Companies d/b/a IFCO Sys. North Am)
What to do after sex discrimination?
As sex discrimination cases are handled by the EEOC at the federal level, time is of the essence due to the 180 day reporting deadline.
Please read our guide on filing a workplace discrimination claim.