Sexual Orientation Discrimination

It is illegal in most areas of the United States for a company to discriminate against a person due to their apparent or perceived sexual orientation. Regardless of the sex of the target or the person who is doing the harassing, it is still considered harassment.

Many individuals struggle with their sexual identity and most chose to keep it private and not share it with many people, especially their co-workers. However, when that private aspect of their personality becomes public fodder for the office to poke fun at, it becomes a case of sexual orientation discrimination.

A person does not need to be gay to face discrimination. If there is a perception of a particular sexual orientation that has been targeted by one or more workers in the office, it is still considered discrimination.

What are Some Examples of Sexual Orientation Discrimination?

Targeting any individual, male, or female due to who they are as people is wrong and can cause significant harm. There are multiple examples of sexual orientation discrimination, which include:

• Being preoccupied with a person’s sexual orientation as opposed to their job abilities.
• Sending an employee degrading or sexually explicit emails regarding their sexual orientation.
• Using derogatory terms when addressing certain people.
• Subjecting a person to continuous homophobic jokes or slurs.
• Propositioning a co-worker for sexual favors.
• Forced physical contact or threats of forced physical contact.

A person does not have to be the opposite sex as their harasser to file a claim of sexual orientation discrimination. Members of the same sex do not get a free pass to discriminate against someone.

What are the Different Types of Discrimination?

There are four types of sexual orientation discrimination that a harasser can engage in:

• Direct Discrimination: This occurs when a person is treated differently than another person in a similar situation because of their sexual orientation, such as if a person is not hired for a position that they are the most qualified candidate for.
• Indirect Discrimination: This occurs when there is a company policy in place that requires a certain way for people to work but puts people of a different sexual orientation at a disadvantage. This is not necessarily illegal as companies can prove there is a good reason for the policy, which is called objective justification.
• Harassment: This occurs when an individual is ridiculed or teased over their sexual orientation. They could be called derogatory names or undergo some other treatment designed to embarrass or demean someone.
• Victimization: This occurs when there is retaliation against an employee who has made a complaint of sexual orientation discrimination or retaliation against someone who is supporting the person who filed the claim.

If a company can demonstrate that it did all it could to prevent such behavior, it could be immune from any litigation, although the actual harasser can still be liable.

Which Laws Pertain to Sexual Orientation Discrimination?

There are multiple laws that address sexual orientation discrimination in the workplace. There are those that exist at the federal level, at the state level, and at the municipality level:

• Title VII of the Civil Rights Act of 1964: The law does not specify sexual orientation when it prohibits discrimination in the workplace, although it does prohibit discrimination against someone due to their gender, which could be loosely interpreted to apply in this case.
• Executive Order 13672: Signed in 2014, this order added sexual orientation and gender identity to the list of areas a person cannot be discriminated against in the federal civilian workforce.
• Philadelphia Fair Practices Ordinance: This ordinance prohibits employment discrimination based specifically on sexual orientation or gender identity. It also prohibits gender identity discrimination, which the law defines as any discrimination that surrounds a person’s appearance, behavior, or physical characteristics that conflict with their gender.

The Pennsylvania Human Relations Act (PHRA) does prohibit sexual harassment in the workplace, although it does not specifically list sexual orientation as a protected class. To make up for this, other cities throughout Pennsylvania have adopted laws with that specific language.

In 2020, the U.S. Supreme Court further clarified that sexual orientation is a protected class in its ruling in the case of Bostock v. Clayton County. The court held that discrimination based on sex includes discrimination based on sexual orientation and gender identity.

Should I Disclose My Sexual Orientation to My Employer?

A person’s sexual orientation is a personal and private matter. It is up to an employee to decide whether they wish to disclose that to their co-workers, and in particular, their manager. However, if one chooses not to disclose that information, they will be unable to use it as a reason for why they believe they were discriminated against later. The company can plead ignorance and could potentially not be held liable for any discrimination that took place based on a person’s sexual orientation.

If a person is facing sexual harassment, they may wish to inform their Human Resources (HR) representative at that point about their sexual orientation. This way, the company can work with the person to reach a resolution that will satisfy all parties.

Another motivation for a person to disclose their sexual orientation early is to help prevent discrimination against others in a similar situation. The more a manager is aware of the members of this community, the more difficult it will be for them to discriminate against them.

What is the Difference Between Sexual Orientation and Gender Identity?

Sexual orientation involves the lifestyle in which a person chooses to live their life. Gender identity is a bit more controversial as it pertains to the sex that a person identifies themselves as, which could conflict with the gender they are at birth. The law is also inconsistent when it comes to discrimination against those who are transgender. Only about 19 states, including New Jersey, have laws in place that specifically list this as a basis that one cannot be discriminated for.

What Should I Do When Facing Sexual Harassment at Work?

When an employee believes that they have become the target of sexual harassment, there are several steps that they should take to seek a resolution to the problem. One of the first steps that they should do is take notes on the incidents that took place. They should include the date and time, along with what was said. They should also collect any evidence that is available, such as notes sent via email or left on the desk or in a public area. Other steps a person should take include to:

• Hire a lawyer. This can occur throughout the process, but it is best to consult with a sexual harassment lawyer early on so they can inform a person about their legal options and help them when filing formal complaints at work or outside the company.
• Speak with the person. The best and usually most effective method to stop harassment from taking place is to speak with the person doing the harassing. It should be a non-confrontational discussion in private. Here, the person can tell the individual why their words might have hurt them and ask them to stop.
• Talk with a manager. If the person refuses to stop or otherwise rebukes the request, the next option is to go to that person’s manager and inform them of the situation. This is where the person can discuss the events that occurred, why they were hurtful, and offer potential resolutions.
• File a complaint with HR. The manager might be unresponsive or could be the one who is responsible for the harassing behavior. In either case, the next step is to speak with the HR department. This might be the ideal time to disclose a person’s sexual orientation if it is not widely known already. The person should share what took place, how it made them feel, and offer any resolutions.
• File a grievance with the government. The next step to occur if the company is not adequately addressing the situation is to take the grievance to an outside agency.
• File a lawsuit. Once a complaint has been lodged with the state or federal government, an employee can file a lawsuit against the company.

Philadelphia Sexual Harassment Lawyers at The Gold Law Firm P.C. Protects the Rights of Those Facing Sexual Orientation Discrimination

If you were discriminated against at work for your sexual orientation, the Philadelphia sexual harassment lawyers at The Gold Law Firm P.C. can advocate for you. Call us at 215-569-1999 or contact us online today for a free consultation. Located in Philadelphia and Pennsauken, New Jersey, we serve clients throughout South Jersey and southeastern Pennsylvania, including Wilkes-Barre, Scranton, Northeast Philadelphia, Bucks County, Chester County, Delaware County, and Montgomery County, as well as New York.