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Sexual Orientation Discrimination
In California, LGBTQ+ workers have the same entitlement to equal civil rights, dignity, and worth as workers with other protected characteristics under the law such as disability and race.
It is unlawful for an employer of five or more employees to refuse to hire; to discharge or to terminate; to refuse to select or to bar or discharge an employee from a training program leading to employment; or to discriminate against the person in compensation or in terms, conditions, or privileges of employment because of the employee's sexual orientation. California Government Code section 12940(a). California Fair Employment and Housing Act (FEHA), California Government Code sections 12900 – 12996.
California’s resolve to eradicate discrimination based on sexual orientation in all levels of society is expressed in other laws such as:
- California Government Code section 11135 (prohibiting discrimination by any state agency concerning access to benefits, programs, or activities),
- California Government Code section 54091 (prohibiting discrimination in the use of public beaches),
- California Public Contract Code section 10507.8 (prohibiting discrimination in competing for University of California contracts),
- California Welfare and Institutions Code section 18907 (prohibiting discrimination in eligibility for CalFresh).
Under the FEHA, sexual orientation is defined as "heterosexuality, homosexuality, and bisexuality." California Government Code section 12926(s). Thus, an employer cannot discriminate against an employee for being heterosexual, homosexual, or bisexual. Neither can an employer, under the FEHA, express or demonstrate favoritism towards employees with differing sexual preferences purely based on the perceived sexual orientation.
It is important to note that the mere appearance of a sexual orientation often leads to discrimination in the workplace. One may be a heterosexual, for instance, but be discriminated against for appearing to be homosexual. This is equally prohibited by the FEHA. California Government Code section 12926(o). Sex discrimination is further defined under the FEHA to include discrimination against transgender persons. California Code of Regulations, title 2, sections 11029 and 11030.
Several municipal codes in California also prohibit sexual orientation discrimination. See Oakland – Municipal Code Chapter 9.44. See also Los Angeles County Code Chapter 5.09.Elements of a Sexual Orientation Discrimination Claim
To bring a claim for discrimination based on the employee's sexual orientation, an employee must show that:
- the employee was a member of the sexual orientation, (ex: homosexual)
- the employee was "subjected to an adverse employment decision," (ex: discharged)
- the employee was "qualified for the position,"
- the employee was "replaced by a person outside the [particular sexual orientation], or similarly situated non-protected employees were treated more favorably." See Vincent v. Brewer Co. (6th Cir. 2007) 514 F.3d 489, 494.
Name-calling, such as using derogatory labels for homosexuals, and mocking can be enough to show workplace discrimination. Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693 (plaintiff stated viable facts for wrongful discharge).
According to the University of California, Los Angeles, an estimated 700,000 adults in the United States are transgender—meaning their internal gender identity is different from the sex listed on their birth certificate. In recognition that a sizable portion of the workforce is comprised of transgender individuals, California mandates that an employer shall allow an employee to appear or dress consistent with the employee’s gender identity or expression, so long as it is within the confines of reasonable workplace appearance, grooming, and dress standards. California Government Code section 12949. An employer prohibiting an employee from using a restroom consistent with their gender identity is unlawful discrimination.
Under both the FEHA and its federal counterpart Title VII of the Civil Rights Act of 1964 (42 United States Code section 2000e, et seq.) (Title VII), employers are not allowed to discriminate against an employee based on the employee's defiance of gender stereotypes. For instance, an employer may not discriminate against a female because she does not "act like a woman." Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 251.
Discrimination, such as one employee of a particular sexual orientation obtaining a promotion while the other employee of another sexual orientation is denied a promotion due to his or her sexual orientation, is expressly forbidden by the FEHA.A Defense to Sexual Orientation Discrimination
In some instances, personal privacy considerations may provide an employer with a defense to sexual orientation discrimination. This defense will only apply to allow an employer to escape liability for sexual orientation discrimination if all of the following are proved:
“(1) The job requires an employee to observe other individuals in a state of nudity or to conduct body searches, and
(2) It would be offensive to prevailing social standards to have an individual of a different sex present, and
(3) It is detrimental to the mental or physical welfare of individuals being observed or searched to have an individual of a different sex present.”
California Code of Regulations, title 2, section 11031.Example of Sexual Orientation Discrimination in the workplace
Toyota hired Husman in April 1997 and, except for a brief period in 2000, Husman worked in various management-level positions in Toyota's marketing, sales, and financial services divisions until Toyota terminated his employment in 2011.
Both Borst, the chief executive officer, and Wada, vice president for human resources, who was Husman’s immediate supervisor, knew that Husman was gay. Borst expressed his concern about Husman’s reputation for gossiping. However, Wada assured Borst she could manage Husman. Shortly thereafter, Wada selected Husman as the first national manager for diversity and inclusion at Toyota Financial Services.
By all accounts Husman excelled at important components of his job. Husman's performance was rated as “very good” on annual performance reviews. Husman received significant annual bonuses and was rewarded with an “Extraordinary Performance Award.”
Notwithstanding his achievements. Wada believed his performance could be improved and counseled him to develop stronger relationships with executive leaders to demonstrate the value of his programs and secure their continued support. Wada also counseled Husman on two occasions about leadership role modeling due to certain behavior.
These complaints did not halt Husman's career advancement. In August 2010 he was promoted to an executive-level position as the corporate manager of corporate social responsibility. Husman now reported to Bybee, who in turn reported to Pelliccioni. Like Borst and Wada, Pelliccioni and Bybee had known Husman for more than a decade and knew he identified as gay.
Thereafter, Husman was disciplined for making certain insensitive remarks. Husman later expressed his frustration and anger with the disciplinary measures, which he felt were unfair. Husman told Pelliccioni he felt Toyota was not supporting the diversity and inclusion program and did not grasp what Husman was trying to do. Husman was also scolded for attendance issues.
Although Borst and Pelliccioni later stated they had no thoughts of terminating Husman in June 2011, an episode at a diversity awards dinner earlier that month had further alienated Husman. Previously, Husman had submitted an application nominating Borst for a corporate leadership award. Borst was selected to receive the award, which was conferred at a dinner in June 2011. In what he later characterized as a joke, when accepting the award Borst said that his goal was to fire Husman. He explained that in the future he hoped a diversity and inclusion program would no longer be necessary at Toyota. Husman believed Borst was mocking him and did not care about diversity.
Husman was also frustrated because other Toyota executives, including Borst and Pelliccioni, had not been disciplined for comments about employees that he believed were far worse than those for which he had been disciplined. Pelliccioni had also made comments Husman perceived as anti-gay, observing that Husman made “a very clear statement” about his sexual orientation and that he should cut his hair. Pelliccioni also ridiculed Husman for wearing a scarf as an accessory when it was not cold outside. Husman complained about these comments to Wada and Bybee; but they did not correct Pelliccioni, who was their boss.
Eventually, Bybee told Husman he was being terminated for “excluding the majority.” Husman claimed Bybee also told him he was focusing too much on LGBT issues, a comment he understood as a reaction to a complaint he made about Toyota’s refusal to add AIDS Walk LA to the list of payroll deductions available for charitable gifts by employees and Husman’s previous statement to the Diversity Advisory Board that Toyota had made inadequate progress in addressing the issues of LGBT employees. According to Husman, Bybee also told him she was terminating him at the request of Pelliccioni, “who had it out for him.” Husman then sued Toyota alleging sexual orientation discrimination and retaliation under the FEHA as well as other claims. The trial court dismissed the case. Husman appealed.
The Court of Appeal noted that Husman presented evidence that Pelliccioni harbored stereotypical views of gay men and articulated clear opinions as to what he considered appropriate gender identity expression, observing at various times that Husman had made “a very clear statement” about his sexual orientation and should cut his hair, as well as ridiculing him for wearing a scarf as an accessory when it was not cold outside. The Court of Appeal also agreed with Husman that while these remarks might not be patently offensive to a non-gay observer, they revealed that Pelliccioni viewed Husman as “too gay” and incompatible with Toyota's corporate culture, even if a less obviously gay employee would be acceptable. The Court of Appeal ruled that while it was a close case, Husman had raised a triable issue of material fact as to whether impermissible bias was a substantial motivating factor for his termination. The Court of Appeal vacated the trial court’s dismissal of the case.
Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168.
As illustrated by the case above, sexual orientation discrimination claims are fact driven. The former employer will often offer a non-discriminatory reason for the termination or other adverse employment action (e.g. suspension, demotion), which the former employer will have to show was a pretext in order to prevail.Contact Us
If you have experienced discrimination at your workplace based on your sexual orientation or others' perception of it, or if you believe your employer has otherwise violated your rights, call the experienced employment discrimination lawyers at Kokozian Law Firm, APC or Contact us via our online form.