LGBTQ Rights in the Workplace

If you are LGBTQ, you may have questions about your right to be protected in the workplace. Specifically, whether or not you have the same protections as women, minorities, the disabled or the elderly at work. The answer is yes–and those protections are stronger than you may think.

Who the Law Applies to

Remember that as with most forms of discrimination the law only applies to companies with more than 5 employees. That is a California rule; federal protections exempt or excuse companies that have less than 16 employees.

In some cases, religious employers may also be exempted from providing LGBTQ protections.

No Discrimination or Harassment

As a member of the LGBTQ community you are protected from both direct discrimination and harassment, as well as hostile work environments—that is, where the atmosphere at work is so pervasive with hostility, or insults, that it becomes difficult or impossible for you to do your job, even if the discrimination isn’t directed at you, personally.

This includes discrimination in hiring; employers cannot ask about your sexuality or gender, even in the interview process.

The Perception of LGBTQ

You cannot be discriminated against because you come out, but you also cannot be discriminated against even if you do not come out—the law protects you even if you are only perceived as being LGBTQ—so if you haven’t actually told anybody at work, but you feel you are being discriminated against because others think you may be LGBTQ, you still may have a valid claim for discrimination or harassment.

Because of this it is even possible to sue your employer if you are not LGBTQ, if you are being discriminated against as if you were. Employers who may be mistaken about your sexuality, or who tease straight or heterosexual people for being a member of the LGBTQ community even though the employee is not, still are illegally discriminating and harassing.

Associational Discrimination

You also cannot be discriminated against because you associate with someone who is LGBTQ, even if you are not. Teasing or harassing or insulting because you have friends in the community, or a relative, or because you spend time with people of the community, is also illegal harassment.

Names and Pronouns

Often, LGBTQ community members want to be known by other names or pronouns. An employer who repeatedly ignores your request, or who purposefully calls you by a name you don’t want to be called by, could be harassing you illegally. It doesn’t matter if you have actually transitioned, or taken any steps to change your gender.

Clothing

You cannot even be required to wear gender specific clothes—for example, an employer could not require a male employee who identifies as a woman, to wear a man’s outfit, or a man’s suit, or say that the employee has to “dress like a man.”

Like any other form of harassment or retaliation your employer also cannot punish you in any way, for complaining about harassment or discrimination because of your sexuality.

Are you being discriminated against because you are LGBTQ? We can help. Contact the San Jose employment attorneys at the Costanzo Law Firm today.

Sources:

aclusocal.org/en/know-your-rights/california-lgbtq-employment-rights#:~:text=What%20if%20I%20am%20not,is%20mistaken%20about%20your%20identity.

calcivilrights.ca.gov/wp-content/uploads/sites/32/2023/01/Workplace-Discrimination-Poster_ENG.pdf