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Sexual Orientation Discrimination in the Workplace Federal Fede ral and state labor law exists exists to prote protect ct you and give you emplo employment yment rights rights,, free from workplace discriminat imination. ion. Sexual Orientation Discrimination in General Sexual orientation discrimination refers to harassment harassment or differential treatment based on someone’s perceived or actual gay, lesb gay, lesbian, ian, bi-se bi-sexual, xual, or heteros heterosexua exuall orien orientatio tation. n. Many Many workplace kplaces, s, and e even ven a number number of stat states, es, have have policie policies s and laws against sexual sexual orientation discrimination. Be sure to check your states laws and your workplace policies. This harassment or differential treatment goes beyond beyond being yelled at for being late. Although, being yelled at is unpleasant and may violate violat e some some unrelated unrelated company company policy policy,, it does not fall into the category category of discriminat imination ion or hara harassment ssment.. Inst Instead, ead, thing things s like being overlooked overlooked for a promotion, being given baseless write-ups o orr improv improvement ement plans, and wrongful termination, because the emplo employer yer or manager disagrees with your your sexual orientation are more along the lines of differential differential treatment. Harassment may Harassment may include include comments comments and name-calling name-calling regard regarding ing your sex sexual ual orientat orientation, ion, or eve even n repet repetitiv itive e requests requests for dates. Amy and Linda, a lesbian couple, are expecting their first ba baby by.. Excited for them, Tina circulated a card around the office for everyone to sign. When Manager Cindy, Cindy, who had pre previously viously thrown all of the bab baby y showers ffor or the pregnant women in her offic office, e, tor tore e up Amy Amy and Lind Linda’ a’s s bab baby y car card, d, co comm mment ented ed on h how ow she w would ould nev never er hav have e pro promot moted ed Li Linda nda if she’ she’d d known known she was gay gay, and wrote up each of them them for disrupting company productivity, productivity, the couple contacted human resources. Human resourc resources es was ab able le to talk to to Cindy Cindy,, remin reminding ding her of not not only th the e company company policy policy,, but als also o the stat state e law agains againstt sexual orientation discrimination. The couple’s couple’s write-up was rev revoked, oked, and although Cindy is entitled to her opinion, she lear ned how to not let it interfere interfere with the management of her team. Had human resources not ef effectively fectively handled the situation, Amy Amy and Lisa ma may y have have had a legal claim ag against ainst Cind Cindy y and the compa company ny.. Federal Feder al Law versu versus s Local Law There are are feder federal al laws that protect protect against against workplace discriminat imination ion based on ra race, ce, sex, sex, nation national al origin, age age,, religio religion, n, pregnancy status, and disability disability.. Unfortunately tunately,, there is currently no federal statute prohibiting private sector sexual orientation discrimination in the wor kplace. How Howev ever er,, if you work for the fede federal ral gove government rnment,, you are protected from sexual sexual orientation discrimination. Several Several proposals to enact a law protecting employees employees from sexual orientation discrimination have been considered, with no success in them being passed. Currently the Employment Non-discrimination Act of 2009, which would prohibit discrimination based on sexual orientation and gender identity, identity, is being considered. The Employm Employment ent Non-Discrimination Act (END (ENDA) A) has been introduced in Congress to ban discrimination based on sexual orientation and gender identity identity.. The bill would prohibit employers employers from making decisions about hiring, firing, promoting or compensating an employee based on sexual orientation or gender identity. identity. The ENDA also prohibits preferential treatment of gay gay,, lesbian, bisexual, and transgendered employees as well as using quotas quota s requiring an employ employer er to hire a certain number number of such emp employ loyees. ees. Neithe Neitherr of these acts has be been en passed, yet; yet; thus, there is still no federal protection against sexual orientation discrimination di scrimination in the wor kplace. There are more more sexual orientation orientation discrimination laws at the state level. level. Almost half of the U.S. states, including the District of Columbia, have active active laws that prohibit sexu sexual al orientation discrimi discrimination nation in both privat private e and public wor kplace kplaces. s. These states include California Iowa Nevada Oregon

Colorado Maine New H Ha ampshire Rhode Island

Connecticut Mar yland New Je J ersey Ver mont

Hawaii Massachusetts New Me M exico Washington

Illinois Minnesota New Y Yo ork Wisconsin

 

Additionally, a few states Additionally, states prohibit sexual orientation discrimination in only public workplaces, such as for state employ employees: ees: Delaware, Indiana, Michigan, Montana, and Pennsylvania. Pennsylvania. Still, ifif you live live in a state that that is giving giving yo you u no prot protection ection,, you should should ch check eck with the the local city city and county county gov governmen ernmentt of your employer. employer. Some local governments have established rules against sexual orientation workplace discrimination in the form of city ordinances. For more information about which local governments governments protect against se sexual xual orientation discrimination, contact a sexual sexual orientation discrimintaion advocacy group, group, such as Lambda Legal Defense and Education . Company Compan y Policies Policies Whether you live Whether live in a state that that has la laws ws against s sexu exual al orientation orientation disc discriminat rimination ion or not, y your our comp company any may have have polici policies es that prohibit sexual sexual orientation discrimination. By law, law, these policies can be more, more, but not less, less, stringent than the state or local law’s law’s standa standards. rds. So, if you live live in Indiana, Indiana, a state tha thatt protec protects ts publi public c workers fr from om sexual sexual orienta orientation tion disc discriminat rimination, ion, bu butt not workers kers in the priv private ate sector sector,, and you work for for a public public com compan pany y, your com compan pany y ma may y have pol policie icies s that prot protect ect against sexual sexual orientation discrimination. Often times, times, these policies include disciplinary steps imposed on managers who engage in sexual orientation discrimination. These steps can can include reversing an any y discriminatory action taken against the emplo emp loyee yee,, and even termin minati ating ng the man manage agerr. Be sur sure e to check check your your own comp compan any’ y’s s pol polici icies, es, and repo report rt any dis discr crimi iminanation to your your company’ company’s s human resource resources s department. department. If human res resources ources doe does s not remedy the iss issue, ue, you may may want to consult an employment or discrimination discri mination lawyer. Gender Identity Discrimination In addition to protecting wor kers from sexual orientation discrimination, some state and local governments also prohibit gender identity identity workplace discriminat imination. ion. These states, states, in additi addition on to the District of Columbia, inclu include de Califor nia Illinois Minnesota Oregon

Colorado Iowa New Jersey Rhode Island

Hawaii Maine New Mexico Vermont

Sometimes,, in state Sometimes states s without gender gender identity disc discriminat rimination ion statut statutes, es, courts hav have e used other antidiscrimina antidiscrimination tion statutes, statutes, like gender disc discrimina rimination, tion, to include gend gender er identity identity.. If you hav have e been discrimina discriminated ted against bas based ed on your gender identity, tity, you may want to consult an employment employment lawyer to consider your options options.. Other Applicable Laws If after after explor exploring your state’ state’s s laws, laws, local law laws, s, and comp company any policie policies, s, you sti stillll find your yourself self with without out avail, avail, the em employ ployer’ er’s s treatment treat ment may may violate violate other employ employment ment righ rights, ts, for whi which ch you could could sue your em employ ployer er or your co cowork workers. ers. The fol following lowing is a list of some some employment employment law law and labor labor law theories: •

Ne Negli glige gent nt or inte intent ntio iona nall infli inflict ctio ion no off emo emoti tion onal al di dist stre ress ss



Ha Hara rass ssme ment nt (beh (behav avio iorr tha thatt ca caus uses es em emot otion ional al di dist stre ress ss an and d ser serve ves s no legi legiti tima mate te pu purpo rpose se))



Se Sexu xual al har haras assm smen entt (ev (even repe repeti titi tiv ve requ reques ests ts for for d dat ates es))



Assaul Assaultt (thre (threate atenin ning g or acting acting as iiff the the a assa ssault ulter er w will ill touc touch hy you ou o off ffens ensiv ively ely))



Batter y (offensive touching)



Invasion of Privacy



Defama Defamatio tion n (co (comm mmunic unicati ation on th that at ca cause uses s sha shame me,, ridi ridicul cule, e, a lowere ered d reputa reputatio tion, n, or e empl mploy oymen mentt or ea earnin rnings gs to suff suffer) er)



In Inte terf rfer eren ence ce with with an empl emplo oym ymen entt c con ontr trac actt



Wrongful termination

If after evaluating evaluating your circumstances, you decide that you fall under one of these categories, contact human resour resources ces or consult an employment attorney. If none of these options avail avail you, remember the other em employment ployment rights granted by by federal employment employment laws. Consider if you are a victim of pregnancy pregnancy discri discriminat mination ion (like Amy and Linda in our above above exa example) mple) or age age,, religio religion, n, disability disability,, national national origin, or racial discrimination. Sometimes, these types of employment employment rights violations overlap with sexual sexual orientation discrimination. imination. If your workplace has no prote protection ction against sexua sexuall orientation orientation discrimination, discrimination, and the treat treatment ment you suffer overrlaps into one of the protect ove protected ed categories, categories, you ma may y hav have e a claim and sh should ould consi consider der cons consulting ulting the hu human man reso resources urces depar tment or an employment lawyer lawyer..

 

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