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Workplace Harassment and LGBTQ Identities: Your Rights at Work

On Behalf of Le Clerc Le Clerc LLP
March 18, 2024
Discrimination, Harassment, LGBTQ

One of the most important things you can do for yourself as a member of the LGBTQ community is to understand and fight for your rights in the workplace. California, known for its progressive stances on various social issues, has established robust laws and regulations to protect LGBTQ individuals from workplace harassment and discrimination. Below, we dive into the intricacies of these protections, highlighting what constitutes a protected identity, the forms of harassment or discrimination that are prohibited, and the steps you can take to safeguard your right to fair employment.

What Are Protected LGBTQ Identities in California?

Under California law, particularly through the Fair Employment and Housing Act (FEHA), a broad range of LGBTQ identities are explicitly protected against discrimination and harassment in the workplace. These protections cover:

Sexual Orientation: This encompasses individuals who identify as heterosexual, homosexual (gay and lesbian), bisexual, or asexual. The law protects individuals against discrimination based on their actual or perceived sexual orientation.
Gender Identity: Gender identity refers to an individual’s internal understanding of their gender, which may be different from the sex assigned at birth, including transgender, non-binary, and genderqueer individuals.
Gender Expression: This pertains to the external presentation of one’s gender, including behavior, clothing, hairstyles, voice, or body characteristics, which may or may not conform to socially defined behaviors and characteristics typically associated with being either masculine or feminine.
Transitioning Status: The law also provides protections for individuals who are transitioning, have transitioned, or are perceived to be transitioning from one gender to another.
Association: Additionally, California law protects individuals who are discriminated against because of their association with a person or group with one or more of these actual or perceived characteristics.

These protections are designed to ensure that all individuals, regardless of how they identify or are perceived in terms of their sexual orientation, gender expression, and identity, are treated equally and without bias in the workplace.

Legal Protections and Enforcement for LGBTQ Workplace Rights

In California, LGBTQ individuals, as defined above, enjoy comprehensive legal protections in the workplace. These protections are designed to ensure that all employees, regardless of their sexual orientation, gender identity, or gender expression, are treated fairly and without discrimination in employment. Here are the key legal protections provided to LGBTQ people in California:

Protection Against Discrimination: FEHA prohibits employers from discriminating against employees or job applicants based on sexual orientation, gender identity, and gender expression. This includes all aspects of employment, such as hiring, firing, promotions, job assignments, training, and benefits.
Protection Against Harassment: The law also protects employees from harassment in the workplace on the basis of their actual or perceived sexual orientation, gender identity, or gender expression. Employers are required to take reasonable steps to prevent and correct such harassment.
Equal Benefits: Employers must provide equal benefits to all employees, regardless of their sexual orientation or gender. This includes health insurance coverage for spouses and domestic partners equivalent to that provided for different-sex spouses.
Gender Affirmation Rights: Employers are required to allow employees to dress consistently with their gender identity and expression. Additionally, employees have the right to use facilities that correspond with their gender identity. Employers may need to provide reasonable accommodations, such as access to gender-neutral restrooms.
Privacy Protections: Employees have the right to privacy regarding their sexual orientation and gender identity or expression. Employers cannot discriminate against employees based on the disclosure or discovery of such information.
Retaliation Protections: California law protects employees from retaliation by employers for filing a complaint, testifying, or assisting in any proceeding under FEHA related to discrimination or harassment.
Required Training: California mandates sexual harassment training for supervisors in companies with five or more employees, which includes training on harassment based on gender identity, expression, and sexual orientation.
Legal Recourse: Employees who believe they have been discriminated against or harassed can file a complaint with the California Civil Rights Department (CRD), which will investigate the complaint and can mediate or prosecute cases of discrimination or harassment.

These legal protections underscore California’s commitment to creating inclusive and equitable workplaces for LGBTQ individuals. It’s important for both employers and employees to be aware of these rights and to uphold them actively within the workplace.

Steps to Protect Yourself at Work

LGBTQ workers in California have several legal protections and steps they can take to safeguard themselves from harassment and discrimination at work. These measures are rooted in the state’s robust anti-discrimination laws, particularly the Fair Employment and Housing Act (FEHA), which prohibits discrimination based on sexual orientation, gender identity, and gender expression, among other characteristics. Here are key actions LGBTQ workers can take to protect themselves legally:

Document Incidents: If harassment or discrimination occurs, it’s crucial to document every incident with as much detail as possible. This includes dates, times, locations, what was said or done, and any witnesses present.
Report the Behavior: Workers should report harassment or discrimination to their employer according to the company’s established procedures. This usually means speaking to a supervisor or the human resources department.
Seek Legal Advice: Consulting with an attorney who specializes in employment law or LGBTQ rights can provide personalized guidance and representation. An attorney can help navigate the legal system, understand the nuances of the worker’s specific situation, and determine the best course of action.

By taking these steps, LGBTQ workers in California can actively protect their rights and seek recourse in the face of workplace harassment or discrimination. Workers need to remember that they are not alone and that there are laws designed to protect them at work.

Take a Stand Against LGBTQ Discrimination in Your Workplace

California’s commitment to protecting LGBTQ workers from harassment and discrimination sets a precedent for fostering inclusive and respectful workplaces. Remember, advocating for your rights not only benefits you but also supports the broader movement toward equality and justice for all.At Le Clerc & Le Clerc LLP, we are dedicated to helping victims of workplace discrimination take a stand against unjust harassment and discrimination based on their identities. If you believe you are facing harassment at work for being a member of the LGBTQ community, contact us today to learn how we can help you.

Honestly Hostile: What to Do If You’re Under Fire at Work

On Behalf of Le Clerc Le Clerc LLP
September 13, 2023
Discrimination, Harassment, Hostile Workplace

The term “hostile workplace” often conjures images of verbal abuse and dramatic arguments. However, it applies to a much broader range of problematic behavior than many people realize. In fact, a survey performed by the University of California in 2017 found that nearly one in five employed adults may work in hostile or threatening conditions.

If so many workers are mistreated, why don’t they take action against their employers? It’s often because employees do not realize that hostile workplaces violate their rights. You may fall into this category if something seems seriously off about your workplace. Here’s what you need to know about hostile workplace laws, how these environments are created, and what you can do to pursue fair treatment at work.

What Is a Hostile Work Environment?

According to California’s Fair Employment and Housing Act (FEHA), a hostile work environment occurs when someone in your workplace is subject to harassment by colleagues or supervisors based on a protected characteristic.

In many cases, the harassment or bullying that leads to these types of environments comes alongside workplace discrimination. However, under FEHA, discriminatory behavior is defined as treating employees differently due to protected categories while performing job-related actions.

As a result, discrimination is most frequently committed by supervisors and management. In contrast, harassment is committed when it falls outside of the employee’s work duties, so anyone within an organization may commit it. A hostile workplace only coincides with unlawful discrimination when someone with authority over the victim participates.

What Characterizes Hostile Workplaces

Unlawful harassment is different from simple bullying. A colleague or supervisor who is mean or dislikes another person can make rude jokes or yell at others without necessarily creating a hostile workplace. The defining factor is that a protected characteristic causes hostility. Someone who bullies everyone regardless of race, gender, or religion may make a workplace unpleasant, but they are not violating the law.

Additionally, only “severe or pervasive” misconduct qualifies to create a hostile workplace. A single incident may be enough to qualify if it is particularly severe, such as a physical assault or a credible threat. However, smaller microaggressions may also accumulate into a hostile situation if they occur often enough for a long time. Examples of negative workplace behaviors include:

Slurs or hate speech: Using negative words and phrases related to someone’s race, gender, or religion, even if not directly aimed at that person, can contribute to hostile work environments
Unwanted sexual comments regarding someone’s gender identity or presentation: While compliments and consensual interactions are not a problem, unwanted sexual comments that continue after requesting they stop are a common kind of harassment.
Unwanted physical contact related to racial hairstyles, religious apparel, or gender characteristics: Unwanted contact can quickly escalate to assault, especially if it is related to protected characteristics.
Targeted aggressive behaviors: If a coworker or supervisor is frequently angry with or shouts at people with certain characteristics, they may be committing harassment.
Focused pranks and ridicule: Similarly, if one person or group is frequently subject to unwanted or humiliating comments, teasing, or practical jokes, the perpetrator is likely harassing them.
Quid pro quo sexual harassment: Offering someone better treatment at work for sexual favors is explicitly named as a type of harassment covered under state and federal workplace protection laws.

If these behaviors stop after one instance or are halted by management after the victim asks for help, they do not constitute workplace harassment. However, they can quickly lead to a hostile work environment if permitted to continue.

These work environments often form when management or HR turns a blind eye to someone’s behavior. Sometimes, there is a single biased person at the top of the department or organization setting the tone for company culture or demonstrating negative bias against certain classes of people. In others, though, the parties responsible for maintaining a hospitable work environment failed to take action when the first signs of harassment appeared, and the situation spiraled out of control. Regardless of the reason, people experiencing workplace harassment may be able to take legal action if their employer refuses to address the issues.

How to Get Help If Your Workplace Is Hostile

The first step to addressing harmful behaviors at work is to try to resolve the issue internally. You may talk to the people harassing you directly if you feel comfortable. Otherwise, you should bring it up with your manager or HR. Either way, it’s best practice to use email to bring up your issues. Email establishes a clear paper trail of when and how you tried to get the behavior to stop.

If the harassment continues and your employer refuses to address it, you may have grounds for legal action. Save copies of your emails and document as many instances of harassment as you can remember. With that information in hand, talk to an experienced workplace discrimination attorney. Your lawyer can help you determine if you have a case, ensure you understand your rights, determine what information and evidence you need to collect, and help you file a legal claim.

Talk to the Expert Hostile Workplace Attorneys at Le Clerc & Le Clerc LLP

Being trapped in a harmful professional environment can wear you down. However, if you’re being mistreated at work, you can get help. The experienced workplace harassment lawyers at Le Clerc & Le Clerc LLP are dedicated to advocating for the employee rights of clients like you. If you believe you’re facing harassment or a hostile workplace, schedule your free consultation with our San Francisco employment law office today to learn how we can help you take a stand.

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