LGBTQ Workers: Hostile Workplace, Harassment, Retaliation in California

More than half of LGBTQ Americans say they have been the target of offensive comments or demeaning slurs, but LGBTQ workers should know they can fight back against a hostile workplace.

Sadly, many LGBTQ workers endure harassment and put up with a hostile work environment because they don’t want to lose their job. They sometimes experience bullying and or discrimination on a daily basis due to their gender identity or sexual orientation.

Now a report by Harvard T.H. Chan School of Public Health, the Robert Wood Johnson Foundation and National Public Radio confirms this. These entities together conducted a national survey among nearly 500 people who are lesbian, gay, bisexual, transgender and queer adults. The survey found that 57-percent of them experienced slurs and 53 percent endured offensive comments from others. Also, some 51 percent say someone they knew experienced violence based on their identity.

Indeed, this harassment is often the worst at a person’s workplace where LGBTQ employees say pervasive acts of harassment based on sexual orientation leads to retaliation and or termination by their employer. The “old boys club” attitude at some institutions leads to emotional trauma, stress and fear of physical assault. Some workers feel like no one has their back. Others remain closeted out of fear they will be a target. Eventually, the anti-gay harassment may lead to an employee being diagnosed with post-traumatic stress disorder, panic attacks and or major depressive disorder.

Sexual Harassment in the Workplace

Sexual harassment on the job by a supervisor, coworker, or even a third party such as a client or customer, happens in violation of federal law as well as many state and local laws. Sexual harassment can occur between members of the opposite sex, or it can occur between members of the same sex.

Same-sex harassment is often reinforced by “systemic failures” that management fails to address. Sometimes supervisors will condone and or permit the harassment to escalate over time. A supervisor or co-worker that gets away with making derogatory comments about someone’s sexuality, leaves the victim open to a hostile work environment where they are repeatedly attacked by the same person or others who join in.

A qualified Employment Law Attorney can file a same-sex sexual harassment and retaliation lawsuit on behalf of an employee experiencing this.

Sexual harassment occurs when a coworker, supervisor, or other third party subjects an employee to unwanted conduct based on his or her sex.

Examples of this conduct includes:

  • Demands for sexual favors,
  • Unwelcome sexual advances,
  • Jokes or comments of a sexual nature,
  • Physical or oral conduct of a sexual nature.

Under federal law, this behavior is considered to be illegal when it intimidates the employee, creates a hostile or offensive working environment for the victim employee. Additionally, if this behavior results in a tangible employment action such as termination or demotion.

One important thing to note is that sexual harassment does not need not be sexual in nature. The intimidation or hostile attitude towards an employee can be based solely on the victim’s sex. An example of this is a supervisor who routinely makes sexist comments that either a male or female employee would find offensive. This type of action would qualify as sexual harassment.

Same-Sex Sexual Harassment

Same sex harassment is illegal as confirmed by the U.S. Supreme Court under Title VII. A landmark case decided by the Supreme Court involved male employees on an offshore oil rig. A male employee was repeatedly harassed by his male coworkers. In fact, the victim was subjected to humiliating, sex-related acts and had threatened him with rape. The court held that he was protected under Title VII which prohibits same-sex harassment. In this case, the court held that sexual harassment does not need to be motivated by sexual desire. (Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).)

Other court cases confirmed that harassment or abuse based on gender stereotypes is also illegal under Title VII. Stereotypes about the way a man or woman should look or act can be discrimination or harassment. A woman, for example, cannot be ridiculed for being too masculine or a man for being too effeminate.

LGBQT workers endure all types of harassment. Whether it’s name calling because they refuse to conform to gender stereotypical behavior or just being the brunt of someone’s rude jokes.

LGBTQ Workplace Retaliation

LGBTQ workers report they are often passed over for promotions. Sometimes it’s due to their sexual orientation and other times it’s because they spoke up or filed a discrimination complaint. However, one of the most common employee cases involves retaliation when they are terminated due to their sexual orientation.

Landmark Supreme Court Decision Bostock v. Clayton

On June 15, 2020, the Supreme Court of the United States delivered a landmark decision. The Court held in Bostock v. Clayton County, that under Title VII of the Civil Rights Act of 1964 (Title VII), the prohibition against sex discrimination does include employment discrimination against an individual on the basis of sexual orientation or transgender status.

Indeed, the Bostock case involved three separate cases that alleged discrimination against LGBTQ+ workers. The Supreme Court joined all of these cases together and decided them in a single opinion.

One of the cases, involved a child welfare service coordinator named Gerald Bostock. His employer fire him after learning that he had joined a gay softball league. Then there is a skydiving instructor named Donald Zarda whose boss fired him after finding out he was gay. Finally, in the third case, funeral director Aimee Stephens was terminated by her employer after they learned she intended to transition from a male to a female.

The Supreme Court held that employment discrimination based on sexual orientation is unlawful under Title VII because it involves a person’s sex.

In the cases of Bostock and Zarda, their employer discriminated against them based on their sexual orientation.

Whereas the case of Aimee Stephens involved termination due to her transgender status.

Therefore, the Supreme Court held that Title VII protects employees from discrimination based on either their sexual orientation or transgender status.

Help for LGBTQ Employees

LGBTQ Workers: Hostile Workplace, Harassment, Retaliation in California

Has an employer or prospective employer discriminated against you? If you are an LGBTQ worker, employers must treat you fairly. You have rights under Title VII of the Civil Rights Act of 1964. It’s imperative that you take steps right away to protect your right to sue. Call Johnson Attorneys Group at 1-800-235-6801 to request a free case evaluation with our knowledgeable and experienced California attorneys. We serve clients throughout California and accept most cases on a contingency fee basis.