Sexual orientation, despite being illegal under California labor laws, is still a cause for harassment or discrimination in the workplace. Understanding sexual orientation discrimination laws can help you to know exactly what employees rights are.
What is Sexual Orientation Discrimination?
According to the California Fair Employment and Housing Act, employers are prohibited from discriminating not only the basis of an individual's actual sexual orientation but also what the employer perceives their sexual orientation is. Sexual orientation may mean bisexuality, homosexuality, and heterosexuality. It also includes the perception that an individual has certain characteristics or if a person actually has the characteristics of a type of sexual orientation. Any adverse decision that an employer makes on the basis of a perceived sexual orientation or actual sexual orientation is considered to be illegal.
Also under this act, employers are prohibited from the retaliation against an employee:
- Who complains in good faith about discrimination based on sexual orientation to the management.
- Complains in good faith about sexual orientation discrimination to the California Fair Employment and Housing Act.
- A good faith filing of a lawsuit in the appropriate court complaining of sexual orientation discrimination.
- Any individual who participates in an investigation, litigation, or proceeding that arises from a claim of sexual orientation discrimination.
These are some examples of sexual orientation discrimination in the workplace:
- Being denied employment, raise, promotion, benefits, or issuing a poor performance evaluation as a result of an individual's sexual orientation.
- Preventing an individual from gaining access to job resources that are typically available to other employees on the basis of their sexuality (or perceived sexuality).
- Denying an individual job training or other educational programs based on an individual's perceived or actual sexual orientation.
- Harassing or retaliating against an individual if they file a complaint or help another file a complaint of sexual orientation discrimination; participating in or allowing the discriminatory conduct to continue, especially when unrelated to the work, and creating a hostile environment for employees.
Gender Identity Rights under FEHA
The California Fair Employment and Housing Act (“FEHA”) prohibits discrimination in the workplace based on sexual orientation as well as gender identity.
A question that you may have is whether or not gender identity is covered under this same category. Sexual orientation discrimination only covers the aforementioned topics. Employees should know that it is still illegal for an employer to discriminate against a person based on their gender identity under the California Fair Employment and Housing Act.
With few exceptions, FEHA applies to employers with five (5) or more employees. It applies to employment agencies, labor organizations, and licensing boards (such as the medical board and the state bar).
Sexual orientation, including gay, lesbian, and bisexual orientation, was added to FEHA as a protected category in 2000 as part of a bill that repealed a Labor Code provision that prohibited sexual orientation discrimination in the workplace, but not harassment. In 2004, FEHA was again amended to include gender discrimination as an unlawful form of employment discrimination. In 2017, the Fair Employment and Housing Commission adopted regulations in Section 11030 of Title 2 of the California Code of Regulations that define gender identity and gender expression for the purposes of the FEHA:
(a) “Gender expression” means a person's gender-related appearance or behavior, or the perception of such appearance or behavior, whether or not stereotypically associated with the person's sex assigned at birth.
(b) “Gender identity” means each person's internal understanding of their gender, or the perception of a person's gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person's sex assigned at birth, or transgender.
(c) “Sex” has the same definition as provided in Government Code section 12926, which includes, but is not limited to, pregnancy; childbirth; medical conditions related to pregnancy, childbirth, or breast feeding; gender; gender identity; and gender expression, or perception by a third party of any of the aforementioned.
(d) “Sex Stereotype” includes, but is not limited to, an assumption about a person's appearance or behavior, gender roles, gender expression, or gender identity, or about an individual's ability or inability to perform certain kinds of work based on a myth, social expectation, or generalization about the individual's sex.
(e) “Transgender” is a general term that refers to a person whose gender identity differs from the person's sex assigned at birth. A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth. A transgender person may or may not identify as “transsexual.”
(f) “Transitioning” is a process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth. This process may include, but is not limited to, changes in name and pronoun usage, facility usage, participation in employer-sponsored activities (e.g. sports teams, team-building projects, or volunteering), or undergoing hormone therapy, surgeries, or other medical procedures.
Thus, California law protects employees from harassment or discrimination based on sexual orientation, gender identity, and gender expression.
This means it is unlawful for an employer to treat any of its employees differently because they are gay, heterosexual, lesbian or bisexual, or based on their employees' gender identities or gender expressions. FEHA prohibits employers from making employment decisions, such as hiring, firing and demotion as well as employment practices, terms and conditions, such as the distribution of benefits, bonuses or other types of compensation, based on any of these protected categories.
Similarly, employers cannot harass employees based on their sexual orientations or genders. This includes harassment from supervisors and managers, coworkers and independent contractors. That is, under FEHA, an employer has the duty to prevent a hostile work environment and to investigate claims of harassment by employees. Failure to do so is a violation FEHA.
