Orientation Discrimination In The Workplace
It is illegal in California for an employer to discriminate
against an employee because of that employee's sexual orientation
or perceived sexual orientation. California law makes it illegal
to discriminate against workers because they are heterosexual,
homosexual, bisexual or transsexual/transgender. Workplace
discrimination and harassment usually involve:
- Refusal to hire
- A hostile workplace
- Refusal to promote
traits may include personality, clothing, hairstyle, speech,
mannerisms and demeanor, and secondary sex characteristics
such as vocal pitch, facial hair and body size or shape. Thus
California law protects not only transgender individuals but
also men who are "perceived" as being too "feminine"
and women who are "perceived" as being too "masculine."
While California law generally allows for the enforcement
of unisex uniform policies and grooming standards, employers
may not apply different standards for men and women. For example,
a policy prohibiting the wearing of eye makeup should be lawful
if it is enforced in a nondiscriminatory manner, but if an
employer does not generally prohibit the wearing of eye makeup,
it cannot prohibit a male employee from doing so. Similarly,
while an employer should also be able to prohibit, in a nondiscriminatory
manner, provocative, outlandish or flamboyant dress in the
workplace, it is clear that regardless of the employer’s
or its customers’ personal tastes or preferences, cross-dressing
itself may not be prohibited.
Perceived Sexual Orientation
It is also illegal in California for an employer to discriminate
against an employee on the basis of that employee's perceived
sexual orientation. So if an employer believes an employee
is gay, and fires him because of that, it is illegal whether
or not the employee is actually gay.
Sexual Orientation Discrimination and Combination With Other
Frequently the same actions that violate the laws against
sexual orientation discrimination violate other laws as well.
It is possible that an employer who is discriminating on the
basis of sexual orientation is also discriminating on the
basis of gender.
For example, a male employer asks a lesbian employee to sleep
with him. She says no, and mentions her sexual orientation.
He says that he won't employ a lesbian and fires her. It could
be argued that he has also discriminated on the basis of sex,
because it's illegal for him to fire her just because she
didn't sleep with him. That would be a form of sexual harassment.
Damages for Sexual Orientation Discrimination
The law against sexual orientation discrimination is very
new, so it is not clear what damages can be received in court.
However, it appears that employees can recover their lost
wages including future loss of wages and other benefits, emotional
distress damages, and punitive damages. Under the Fair Employment
and Housing Act (FEHA), employees may also recover attorneys’
fees and costs.