LGBTQ Rights Attorney

LGBTQ Employment Rights

A significant number of lesbian, gay, bisexual and transgender employees continue to experience discrimination and harassment in the workplace. Employees have a right to go to work without fear of being bullied or losing their jobs because of who they are or who they love. In California, under the Fair Employment and Housing Act (“FEHA”), it is unlawful for employers to discriminate against workers or treat them unequally because of their sexual orientation, gender identity, gender expression or sex.  

Specifically, employers are prohibited from discriminating against employees on the basis of the employee’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. Employers are also prohibited from discriminating against employees on the basis of the employee’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. 

You are protected if you elect to transition on the job.

It is unlawful to discriminate against an individual who is transitioning, has transitioned, or is perceived to be transitioning. You have a right to tell your employer that you are transitioning; and your employer cannot discriminate against you or mistreat you because you transition.

You are protected if you elect to come out at work.

If you are not already out, coming out is your decision. Your employer cannot discriminate against you or mistreat you because you come out. 

Discrimination based on terms, conditions and privileges of employment is prohibited.

An employer must not base the amount of compensation paid to an employee, in whole or in part, on the employee’s sex. It is also unlawful for an employer to condition the availability of fringe benefits upon an employee’s sex, including gender identity and gender expression. It is also unlawful for an employer or other covered entity to have a pension or retirement plan that establishes different optional or compulsory retirement ages based on the sex of the employee. Doing so may violate state law and expose the employer to a discrimination lawsuit, including a gender discrimination claim. 

An employer must provide equal opportunities to all applicants and employees, regardless of sex, gender, gender expression or gender identity, for upward mobility, promotion, and entrance into all jobs for which they are qualified.

It is unlawful to deny employment to an individual based wholly or in part on the individual’s sex, gender, gender identity, or gender expression. An employer is also prohibited from inquiring about or requiring documentation or proof of an individual’s sex, gender, gender identity, or gender expression as a condition of employment. In fact, an employer cannot legally ask a job applicant about their sexual orientation, gender identity or gender expression at an interview. 

It is also unlawful for an employer to designate a job exclusively for one sex or to maintain separate lines of progression or separate seniority lists based on sex unless it is justified by a permissible defense.  For example, a line of progression or seniority system is unlawful that:

  • Prohibits an individual from applying for a job labeled “male” or “female,” or for a job in a “male” or “female” line of progression; or
  • Prohibits an employee scheduled for layoff from displacing a less senior employee on a “male” or “female” seniority list.

An employer must not engage in gender discrimination and must provide equal opportunities to all employees for upward mobility, promotion, and entrance into all jobs for which they are qualified. 

Note, an employer, however, is not prohibited from implementing mobility programs to accelerate the promotion of underrepresented groups.

Employers must accommodate employees if working conditions pose a greater danger to the health, safety, or reproductive functions of an applicant or employee of one sex than another.

If working conditions pose a greater danger to the health, safety, or reproductive functions of applicants or employees of one sex than to individuals of another sex working under the same conditions, the employer or other covered entity shall make reasonable accommodation to:

  • Alter the working conditions so as to eliminate the greater danger, unless it can be demonstrated that the modification would impose an undue hardship on the employer. Alteration of working conditions includes, but is not limited to, acquisition or modification of equipment or devices and extension of training or education; or
  • Upon the request of an employee of the more endangered sex, transfer the employee to a less hazardous or strenuous position for the duration of the greater danger, unless it can be demonstrated that the transfer would impose an undue hardship on the employer.

An employer may require an applicant or employee to provide a physician’s certification that the individual is endangered by the working conditions. Once such a certification is provided, an employer has an obligation to accommodate the employee unless doing so would pose an undue hardship. 

The Bona Fide Occupational Qualification Defense.

Once employment discrimination on the basis of sex has been established, an employer may prove one or more appropriate affirmative defenses, including, but not limited to, the defense of Bona Fide Occupational Qualification (BFOQ). The BFOQ refers to a quality or attribute, such as sex, gender, gender identity or gender expression, that employers are legally allowed to take into account when making hiring and employment decision. To establish the defense, an employer must prove: 

  • The job requirement is reasonably necessary for the operation of the employer’s business; 
  • The employer had a reasonable basis for believing that substantially all members of the specific sex, gender, gender expression nor gender identity are unlikely to safely and efficiently perform the jo; 
  • That it is impossible or highly impractical to consider whether each applicant or employee is able to safety and efficiently perform the job; and 
  • That it is impossible or highly impractical for the employer to rearrange job responsibilities to avoid using an individuals sex, gender, gender identity or gender expression as a job requirement. 

Note, situations that will not justify the application of the BFOQ defense include: 

A correlation between individuals of one sex and physical agility or strength; 

  • A correlation between individuals of one sex and height; 
  • Customer preference for employees of one sex; 
  • The necessity for providing separate facilities for one sex; or
  • The fact that an individual is transgender or gender non-conforming, or that the individual’s sex assigned at birth is different from the sex required for the job; or 
  • The fact that members of one sex have traditionally been hired to perform the particular type of job. 

Personal privacy considerations may justify a BFOQ only where: 

  • The job requires an employee to observe other individuals in a state of nudity or to conduct body searches, and 
  • It would be offensive to prevailing social standards to have an individual of the different opposite sex present, and 
  • It is detrimental to the mental or physical welfare of individuals being observed or searched to have an individual of the different opposite sex present. 

Employers shall assign job duties and make other reasonable accommodations so as to minimize the number of jobs for which sex is a BFOQ. 

Discrimination and harassment based on a protected class is illegal.

California employment laws prohibit sex harassment and gender discrimination. For example, if you are being subjected to sexual advances, a hostile work environment, pregnancy discrimination, a glass ceiling, or a gender gap in violation of the Equal Pay Act then there are employment laws that may protect you. For example, if you learn female employees with substantial years of experience and performing substantially similar duties as male employees are earning less, then there may be a violation of the Equal Pay Act. 

It is illegal for an employer to punish an employee who complains about sex discrimination or sexual harassment in the workplace.  

You or someone you know is being retaliated against because you complained about harassment or discrimination on the basis of sex, gender, gender identity or gender expression, you should seek legal assistance by reaching out to a gender discrimination attorney to see what protections are available to you. If you are a whistleblower because you stood up for victims of gender discrimination then you are protected from wrongful termination.

If your rights have been violated you may be entitled to damages.

Under state and federal law, you might be able to recover damages, such as emotional distress and lost wages. Additionally, under the FEHA as well as federal law you may be awarded punitive damages as well as your attorney fees and costs if you prevail. If your conditions of employment were impacted by employment decisions based on your sex or gender, you should contact a workplace discrimination attorney. 

Contact us today for a case evaluation.

If you have been wronged by your employer, you may be scared and unsure of your rights. If you are interested in learning more about your rights, discussing your potential discrimination claims and obtaining legal advice from an employment attorney, please contact the Avloni Law Firm today for an initial consultation. 

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