Sexual Orientation Discrimination

California Fair Employment and Housing Act (FEHA): It is unlawful for an employer 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. Cal. Gov. Code § 12940(a).

Sexual orientation is defined as "heterosexuality, homosexuality, and bisexuality." Cal. Gov. Code §12926(q). Thus, an employer cannot discriminate against an employee for being heterosexual, homosexual, or bisexual. Neither can an employer, under 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, and this is equally prohibited by FEHA. Also, discrimination is likewise prohibited by FEHA, and sex discrimination is further defined to include discrimination against transsexuals. Cal. Gov. Code §12926(p).

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. 39 Cal.Rptr.2d 65 Cal.App. 1 Dist.,1995 (plaintiff stated viable facts for wrongful discharge)

Under both FEHA and Title VII, employers are similarly 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 US 228, 251.

While any discrimination based on orientation that gives rise to a hostile work environment would be prohibited, the California judiciary's stance on same-sex discrimination is currently unclear, with one district in California holding that actionable same-sex harassment (not to be confused with discrimination) requires sincere sexual intentions and another district holding that sexual intentions are not required. Kelley v. Conco Companies, 196 Cal.App.4th 191, 1 Dist., 2011; Singleton v. United States Gypsum Co., 45 Cal.Rptr.3d 597, (2006). However, this ambiguity in the case law only applies to the situation where an employee of one sex is making sexual comments, advances, or otherwise unwarranted behavior about or around someone of the same sex. 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, is still expressly forbidden by FEHA.

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If you have experienced discrimination at your workplace based on your sexual orientation or others' perception of it, contact the leading California sexual orientation discrimination lawyers at Kokozian Law Firm, APC. 323-857-5900. Ask about our free initial consultation.