The LGTBQ community has made strides in the last few decades to curtail workplace discrimination, but as with other types of discrimination, there is always more work to be done. On the federal level, sexual orientation or gender identity is still not explicitly protected by Title VII. However, many states (at least 22 as of this writing) and major cities have their own laws protecting against LGTBQ discrimination.
Laws and attitudes vary greatly across the country, so it is important to know what your rights are wherever you are interviewing or working, and what steps you should take if you suspect you’re a target of this kind of discrimination.
LGBTQ Discrimination Today
The U.S. Supreme Court recently heard oral argument on three cases affecting LGTBQ workplace rights, Zarda v. Altitude Express, Inc., Bostock v. Clayton County, GA, and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC (Stephens), although a decision is not expected until early summer of 2020. These cases have the potential to change the legal landscape throughout the country. They each examine whether Title VII protects sexual orientation and gender identity within the scope of “sex.” Regardless of their outcome, looking at these cases’ underlying stories paints a telling picture of what LGTBQ workplace discrimination looks like today.
Skydiving instructor Donald Zarda openly identified as gay. As part of his job, he participated in tandem skydives strapped body-to-body with clients. Zarda would sometimes tell female clients about his sexual orientation to lessen concerns they may have about being strapped to a man. On one such occasion, the client told her boyfriend that Zarda inappropriately touched her and then mentioned his sexual orientation to downplay the issue. The boyfriend told Zarda’s supervisor, and Zarda was fired. Zarda claimed in part that he was “discharge(ed) because of a homophobic customer” as well as animus from his supervisor.
Zarda’s story highlights an issue that could play out anywhere in the country:
- What does an employer do when confronted by an LGTBQ-phobic client and forced to choose sides?
- Will the employer back its employee or cave to client pressures?
- And if the latter, what could be the employee’s recourse?
Gerald Lynn Bostock was a Child Welfare Services Coordinator in the Clayton County (Ga.) Juvenile Court. Bostock worked for 10 years earning good performance evaluations and accolades for his work. In January 2013, Bostock became involved with a gay recreational softball league, and promoted volunteer opportunities in the Juvenile Court to softball league members. The county began conducting an internal audit on the program funds Bostock managed, and two months later he was fired for “conduct unbecoming,” which he alleged to be pretext for discrimination.
Bostock’s case highlights these issues:
- Where an LGTBQ employee “outs” themselves to supervisors who had previously been unaware, what happens if work conditions suddenly change?
- What if performance reviews turn negative without explanation?
- What if an LGTBQ employee openly identifies or advocates as a member of the community? Does the employer really have an unwritten “don’t ask, don’t tell” policy?
Funeral director Aimee Stephens was born biologically male. Shortly after informing the funeral homeowner that she was transitioning from male to female, she was fired. Her employer alleged that it had no duty to continue to employ her where her transitioning was a “substantial burden (to the funeral home’s) sincerely held religious beliefs.”
Stephens’ case highlights two more salient issues.
- What workplace rights do persons have while transitioning, particularly in states without explicit protections?
- How do courts balance religious beliefs with the rights of the LGTBQ community?
The Supreme Court may resolve some of these questions, but legal issues surrounding LGBT workplace discrimination are still developing and will continue to do so for many years.
How To Respond To LGTBQ Discrimination
Find out what measures your employer has in place to address discrimination complaints internally. Most employers are legally required to have a system for reporting, investigating and addressing claims of discrimination and harassment. In theory an employer cannot retaliate against you for making a workplace discrimination complaint, but it still happens, and filing an internal complaint may not be without some risk. Human Resources might seem friendly, but never forget that their first loyalty lies with the employer, not with you.
Other legal options depend where you work, as many states have their own agencies appointed to investigate workplace discrimination. However, many agencies are overworked and understaffed, so they may not be able to devote the necessary time and attention to your claim.
Likewise, since 2015, the Equal Employment Opportunity Commission has taken the position in its interpretation and enforcement policies that “sexual orientation is inherently a ‘sex-based consideration.’” This means an allegation of discrimination based on sexual orientation is an allegation of sex discrimination under Title VII, and its offices handle and investigate such charges as they would with other types of discrimination. However, the EEOC also has limitations to its staffing and caseload.
In any event, it is important to document the incident or incidents as quickly and thoroughly as possible. Do not delete relevant emails and, if appropriate, retain the emails in a way that you can access them if you are later terminated. Do not use your employer’s email system or computers for anything you would consider confidential. Generally you have no right of privacy in your employer’s technology, and you should assume your employer will have access to anything you put on its email or computers. For verbal communications, detailed notes to yourself of who said what, where and when it was said, and who witnessed it can help you later if the issue continues to grow.
You may also want to consult with local employment counsel to find out what legal recourse is available where you live. Many reputable plaintiff-side employment lawyers will take discrimination cases on contingency. You should also assess an attorney’s experience, caseload and proposed strategy before engaging him or her. Having aligned views with your attorney on your case is key to getting a good result.
Bryan Lazarski is founder of Lazarski Law Practice, P.C., based in Century City, Calif., which specializes in litigating and advising employees on all aspects of employment law.