What is Gender Identity and Sexual Orientation Discrimination?

Employment discrimination lawyers in San Francisco representing victims of gender expression and sexual orientation discrimination.

Employment discrimination means treating an employee unfavorably because of that person’s membership in a protected class. Sex is a protected class under federal law, but California law also protects against discrimination on the basis of sex, sexual orientation, gender identity, and gender expression. Employees and job applicants in or near San Francisco who have experienced sexual orientation discrimination because they belong to any of those protected classes should contact the San Francisco employment discrimination attorneys at Minnis & Smallets.

California Law Protects Gender Identity and More

Federal laws prohibiting sex discrimination do not expressly address discrimination on the basis of gender identity, gender expression, or sexual orientation. Some federal judges have recognized that sex discrimination includes discrimination based stereotypes about the way members of each sex should look or behave, but other federal judges have interpreted federal law more narrowly.

However, the California Fair Employment and Housing Act (FEHA) includes key protections that are missing from federal law. The FEHA includes a broad definition of sex discrimination. It also prohibits discrimination on the basis of sexual orientation.

California law defines “sexual orientation” as heterosexuality, homosexuality, and bisexuality. It defines “sex” as including “gender identity” and “gender expression.”

The FEHA defines “gender identity” as self-identification as male or female, whether or not that identification differs from birth gender. The definition also includes transgender individuals.

The FEHA defines “gender expression” as gender-related appearance or behavior. The FEHA protects gender expression whether or not it is stereotypically associated with the person’s sex at birth.

Finally, the definitions of sex and sexual orientation include “a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.” Discrimination that is based on a perception of an employee’s sexual orientation or gender identity is unlawful even if the perception is mistaken. It is also unlawful to discriminate because of an employee’s friendship or relationship with someone who falls within one of the protected classes.

Types of Discrimination

Employment discrimination usually involves an action by the employer that has a financial impact on the employee. Any of the following adverse actions are examples of employment discrimination when they are motivated by the employee’s (or job applicant’s) membership in a protected class:

• Refusing to hire a job applicant
• Demoting an employee or denying a promotion
• Firing an employee
• Failing to provide equal pay
• Denying the employee training opportunities that are provided to other employees in the same position

Employment discrimination can also consist of harassing an employee. While occasional inappropriate remarks might not rise to the level of harassment that entitles an employee to a remedy, conduct that creates a work environment that is hostile or oppressive to members of a protected class violates the FEHA when the hostility or abuse substantially impairs the employee’s ability to work.

In addition, California law protects employees from retaliation when they report or complain about workplace discrimination or harassment. Employees are also protected against retaliation for helping a discrimination victim make a discrimination complaint or for testifying in a discrimination case.

Proof of Discrimination

In some cases, an employer makes its discriminatory attitudes clear. Sometimes there will be direct evidence of discriminatory intent, such as remarks by a supervisor that show a discriminatory motive. In these cases, the evidence of discrimination is considered to be particularly strong.

However, this type of “smoking gun” evidence of discrimination is rare. In most cases, discriminatory intent is proved by the circumstances. For instance, when employees of a particular sex or orientation are assigned to the best jobs or given better pay while an employee who has a different orientation or sexual identity is assigned to less favorable jobs or earn lower wages, then this could raise an inference of discrimination.

New Regulations

Regulations adopted in 2016 require California employers that have five or more employees to develop policies that prevent discrimination, harassment, and retaliation. The policy must allow the affected employee to report discrimination to someone other than the employee’s direct supervisor, to conduct a fair investigation of discrimination complaints, to take appropriate action if misconduct is found, and to refrain from retaliating against employees who make complaints or who assist other employees in making complaints.

Employers who have fifty or more employees must provide anti-bullying training. The training must be designed to prevent abusive conduct that is directed toward employees who belong to a protected class.

The regulations also make clear that unpaid interns and volunteers are protected from workplace harassment.

Getting Help

Employees who have been subjected to sexual orientation discrimination or harassment because of their sexual orientation, gender identity, or gender expression should speak with an employment law attorney. The employment lawyers at San Francisco’s Minnis & Smallets advise employees who have been subjected to discrimination or retaliation about their legal rights and help them seek compensation and other legal remedies made available by California law. To learn more, call us at 1-415-551-0885 or submit our online contact form.