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Sexual Orientation Discrimination

Sexual orientation discrimination in the workplace occurs when an employee is subjected to negative employment action, harassment, or denial of certain benefits because of their sexual orientation, or the sexual orientation of someone they are close to. Sexual orientation discrimination has been part of the workplace in America for decades, and while federal, state and local laws, as well as increased social awareness, have improved the situation dramatically, many people who are not heterosexual still face obstacles at work related to being gay, bisexual, asexual, or pansexual. It is important for employees to have the right information about what constitutes discrimination based on sexual orientation, what constitutes harassment, and how sexual orientation discrimination can tie in with other prohibited forms of discrimination like, sex, disability, gender identity, and marital status.

Sexual orientation discrimination can affect your job status, your working environment, your health benefits, and a host of other issues in the workplace. The law in this area is changing rapidly for the better. If you feel you might have been discriminated against because of your sexual orientation, read below for more information and resources about sexual orientation discrimination.

What is sexual orientation discrimination?

Sexual orientation discrimination means treating someone differently solely because of his or her real or perceived sexual orientation: lesbian, gay (homosexual), bisexual, asexual, pansexual, or straight (heterosexual). This means that discrimination may occur because of others’ perception of someone’s orientation, whether that perception is correct or not. It may also occur based on an individual’s association with someone of a different sexual orientation.

Someone who is discriminated against on the basis of sexual orientation may also be discriminated against or harassed on the basis of sex, gender identity, disability (such as actual or perceived HIV status), or marital status.

Examples of sexual orientation discrimination include:

  • Different treatment: you are not hired, not promoted, disciplined, or fired specifically because your boss thinks you are lesbian, gay, bisexual, or straight etc. This goes beyond simply being yelled at for showing up late. Being overlooked for a promotion, wrongful termination, receiving a write-up with no basis, and other serious negative employment actions may qualify as different treatment. Some companies have policies that explicitly discriminate against lesbian, gay and bisexual employees, while in other companies the discrimination is more subtle but no less real. You may find that you start to be treated differently once you come out as homosexual to coworkers or place a photograph of your same-sex partner on your desk. The discrimination may come from just a few people in the company, from your supervisor, or from the company’s CEO.
  • Harassment: you are forced to experience comments about your mannerisms or sexual activity, sexual jokes, requests for sexual favors, pressure for dates, touching or grabbing, leering, gestures, hostile comments, pictures or drawings negatively portraying a specific sexual orientation, or sexual assault or rape. Your harasser may be an employer, supervisor, co-worker, or customer, and may be of the opposite or same sex.

If any of these things have happened to you on the job, you may have suffered sexual orientation discrimination.

Which federal law covers sexual orientation discrimination?

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against any individual on the basis of race, color, religion, sex, or national origin. In 2020, in Bostock v. Clayton County , the U.S. Supreme Court held that Title VII’s prohibition against sex discrimination also necessary prohibits discrimination against gay and transgender people, because it is impossible to fire someone for being gay or transgender without firing them, at least in part, based on sex.

Despite these Supreme Court rulings, LGBTQ Americans are still at risk of being denied services and risk being fired simply for being married or expressing their sexuality.

The Equality Act is a comprehensive federal LGBTQ non-discrimination act that would provide permanent protections for LGBTQ individuals in the most important aspects of their lives, including but not limited to matters of employment, housing, access to public places, federal funding, credit, education, and jury service. In addition, it would prohibit discrimination on the basis of sex in federal funding and access to public places.

Additionally, many federal government employees are covered by provisions in the Civil Service Reform Act of 1978 which prohibit sexual orientation discrimination. One of these provisions, 5 U.S.C. 2302(b)(10), makes it illegal for any employee who has authority to take certain personnel actions from discriminating among employees or job applicants on the basis of conduct that does not adversely affect employee performance. This language has been interpreted to prohibit discrimination based upon sexual orientation.

Currently, 22 states and the District of Columbia, as well as several hundred municipalities (counties and cities), also have laws that prohibit sexual orientation discrimination. 20 of these states prohibit sexual orientation discrimination in both private and government workplaces. This number is constantly changing, so you should also check with an attorney or local gay rights legal or political organization to see whether any new laws apply to you.

Are there any other laws which make it illegal to discriminate on the basis of sexual orientation?

Many union collective bargaining agreements (contracts) include an anti-discrimination provision, which may include sexual orientation. If such a provision is included in your union contract, it gives you a basis to file a grievance if you have been discriminated against because of your sexual orientation. Additionally, many workplaces are implementing their own rules on this issue. In fact, 91 percent of Fortune 500 companies prohibit discrimination based on sexual orientation, and 61 percent prohibit discrimination based on gender identity.

The law in this area is constantly changing, with numerous legislative efforts currently in progress around the country to add sexual orientation to state laws, local ordinances, governmental regulations, and corporate policies. You should check with a local attorney, gay and lesbian rights organization, or your corporate human resources department to see whether there have been any recent changes in the law or policies affecting your employment. Even if there is no legal protection affecting your employment, you may be able to encourage your employer to voluntarily cease discriminatory activity and/or to educate others in your workplace to help improve your employment situation.

What if I am being harassed by someone of the same sex or because of my sexual orientation, how does harassment relate to sexual orientation discrimination?

Sexual harassment is a form of sex discrimination that is prohibited by federal law and the laws of most states, regardless of whether the state also has a law against discrimination on the basis of sexual orientation.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature is considered sexual harassment, when submission to, or rejection of, this conduct affects your employment, unreasonably interferes with your work performance, or creates an intimidating, hostile or offensive work environment. The U.S. Supreme Court has specifically ruled that the victim does not have to be of the opposite sex to be able to bring a legal claim for sexual harassment.

Sexual harassment can occur in a variety of circumstances:

  • The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
  • The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
  • Unlawful sexual harassment may occur without economic harm to the victim, such as loss of a job.
  • The harasser’s conduct must be unwelcome.

If you are being sexually harassed, you should directly inform the harasser that the conduct is unwelcome and must stop. If you are a union member, it may also be helpful to contact a union civil rights committee for appropriate action. You should use any employer complaint mechanism or grievance system available, as your employer is under a legal obligation to take immediate and appropriate action when an employee complains. For more information, see our page on sexual harassment. If you have been subjected to these types of comments, you may wish to consult with an attorney who specializes in sexual harassment and/or sexual orientation discrimination to determine what laws may offer legal protection in your state.

Are homophobic jokes or slurs against the law?

It depends. Jokes or slurs about your sexual orientation may be considered a form of harassment, which courts have held is a form of discrimination under the law. However, federal law and the laws of most states do not prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious. The conduct must be sufficiently frequent or severe to create a hostile work environment or result in a “tangible employment action,” such as hiring, firing, promotion, or demotion. For more information, see our page on sexual harassment.

What if my employer does not know my sexual orientation?

You may choose to keep your sexual orientation a purely private matter; nothing requires you to disclose this information to your employer if you do not choose to do so.

However, if you are undergoing discrimination or harassment at work, you may wish to disclose your sexual orientation when speaking with your company’s human resources department and/or a member of management to see whether your employer can work with you to solve the problems you are facing. Otherwise, your company may claim it was unaware of your sexual orientation, and as a result incapable of resolving any discrimination or harassment against you on the basis of your sexual orientation.

Also, as more and more people become aware of their gay co-workers, neighbors, family members, friends, and professionals, withholding basic civil rights protections in employment becomes increasingly difficult for an employer to justify, so you may wish to disclose your sexual orientation to your employer for that reason.

Can I be asked not to discuss my sexual orientation or display a picture of my same-sex partner at work?

LGBTQ employees are entitled to be treated the same as their straight coworkers.  If the employer prohibits all personal photographs, then it may prohibit you from displaying a picture of your same-sex partner.  But if straight employees are allowed to personalize their workspaces, then so are you.

If you find yourself in this situation, you may wish to speak with your company’s human resources department, other supervisors and co-workers, or a local attorney to determine whether you can work with your employer to resolve this issue.

Am I entitled to employment benefits for my partner and family?

Many employers subsidize all or a large portion of health, dental, vision, and other benefits for spouses and families of married employees without giving similar compensation to unmarried and/or childless workers in some other form. The U.S. Supreme Court held in Obergefell v. Hodges held that same sex marriage is a fundamental right guaranteed by the Constitution. Once married, your spouse and family are entitled to your employee benefits including health insurance. Denying benefits solely because you are married to a person of the same sex violates federal law. Additionally, some states have domestic partnership laws which provide the basis for some companies to provide equivalent benefits to unmarried couples who meet the state’s partnership or civil union requirements.

Prior to the Obergefell decision, many employers, even in states where same sex marriage was illegal, had already extended employee benefits to domestic partners of gay employees since they did not have the option to legally wed. And many employers extended those benefits to opposite sex couples as well. In fact, 66 percent of Fortune 500 companies offered domestic partner benefits to employees prior Obergefell. Since same-sex marriage is now the law and same sex spouses are now afforded the same employee benefits as opposite sex spouses, it is unclear whether those companies will continue offering domestic partner benefits.

If you feel you have been treated unfairly due to your sexual orientation, or marital or familial status, you may wish to explore with your employer’s personnel or human resources department whether additional options are currently available or under consideration, and discuss with other workers whether they also object to the difference in benefits.

Can my employer justify their discrimination on religious grounds?

The law is rapidly changing in this area, and it is not yet clear whether a customer or coworker can legally justify refusing to work with particular employees on the basis of their sexual orientation. Based upon precedents in other areas of discrimination law, an employer typically cannot use customer or coworker preference as a justification for discrimination.

Can I take leave to care for my partner or my partner’s family members?

The primary federal law protecting the right to take family or medical leave without losing your job and health insurance benefits, or suffering retaliation is the Family and Medical Leave Act (FMLA), the definition of “spouse” did not historically include an unmarried partner. However, since the Supreme Court’s decision to repeal Section 3 of Defense of Marriage Act (DOMA) and the Supreme Court’s decision in Obergefell v. Hodges and since the Department of Labor issued a regulatory change to the definition of spouse, effective March 27, 2015, eligible employees may use FMLA to take leave to care for a same-sex spouse, or legal common law partner, no matter where they live.

This allows the individual to take unpaid, job-protected, leave to care for their spouse or family member, including step-child or step-parent, even if the employee does not have in loco parentis (day to day responsibilities over the individual or financial support). These changes in DOMA, and in addition to the new same-sex marriage ruling, ensure that the FMLA gives spouses in same sex marriages the same ability as opposite-sex spouses to exercise FMLA rights.

However, these changes still do not include Civil Unions or domestic partnerships since civil unions and domestic partnerships are not considered marriages under the FMLA. Under FMLA, if you are also the parent of your partner’s child, through adoption or acting in a parental capacity, you may be able to take FMLA leave to care for you and your partner’s child.

The law in some states may be more protective than federal laws. For example, California law requires that employers offer sick leave to care for domestic partners and/or your partner’s children. Your company’s leave policy, especially if you have domestic partnership benefits and/or a non-discrimination clause which includes sexual orientation, may provide for leave even though it is not required by law. If you need leave for this reason, consult your company handbook or corporate human resources department to determine whether your employer will allow you to take leave.

What is the difference between sexual orientation discrimination and gender identity discrimination?

The term “sexual orientation” is generally understood to refer only to whether a person is homosexual (gay), heterosexual (straight), or bisexual, while “gender identity” refers to one’s self-identification as a man or a woman, as opposed to one’s anatomical sex at birth. Not all transgender people are gay. Many transgendered people identify as straight; many transgender women have male partners and many transgender men have female partners. For more information, please see our page on gender identity discrimination.

 

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