Recognizing LGBTQ Harassment in the Workplace

Both federal and California law protect LBGTQ workers from discrimination and harassment in the workplace, albeit California’s state laws are broader, and do provide more protection than federal laws. But while workplace rights and protections for the LBGTQ community are continually increasing, that doesn’t make discrimination cases against the LBGTQ community any easier.

Hard to Spot

The fact remains that when it comes to workplace discrimination, some forms of discrimination are more obvious or more overt, and thus easier to prove, than other kinds.

For example, there is almost no “subtle joke” about race; any such “humor” is or should be quickly recognized as being potentially harassing in the workplace. But when it comes to jokes about age or older people, we tend to tolerate them much more often. The Problem With Microaggressions

The same goes for discrimination and harassment against the LGBTQ community. Employees in the community face challenges proving their cases and proving that they were discriminated against.

One challenge is the existence of what are known as microaggressions. Microaggressions are  forms of aggression or harassment that may not be readily obvious or may even seem innocuous.

Many of these microaggressions are based on stereotypes, and may not even be made, in a hostile fashion. For example, joking that a woman in the workplace is best suited to help clean a break room because she’s “probably better than the rest of us with those domestic chores,” may be easily recognized as insulting to a woman—but a male supervisor or co-employee may not recognize it as such.

The same may be said by telling someone of a different nationality that they “speak well” or are “articulate” thinking these comments were a compliment.

These types of stereotypes—again, often disguised as or even meant as compliments—are often thrown about willingly in terms of the LBGTQ community.

Worse, when complaints are made about microaggression, they are often dismissed by supervisors as being petty or that the employee is being “too sensitive.”

Perception of Gender Identity or Sexuality

The protections for the LGBTQ community don’t just extend to LGBTQ people—they also protect anybody perceived as LGBTQ, even if they aren’t part of the community.

So, someone teased for being gay in the office may have a claim for harassment, even if that employee is completely straight.

Someone who is LBGTQ and who is harassed can sue, even if nobody in the office actually knows for a fact that the employee is LGBTQ. Saying “We had no idea he or she was really gay/transgender/lesbian, etc.” is not a valid defense to workplace harassment against the LGBTQ community.

Hostile Work Environment

Remember that you don’t have to be directly insulted or talked about, for discrimination exist.

A workplace where jokes are made, insults are made, or where degrading or insulting material, emails, computer links, or other material are passed around, which may be threatening, insulting or degrading to the LGBTQ community, may provide the grounds for a hostile work environment claim.

If you are a member of the LGBTQ community and you feel you have been harassed in the workplace, we can help. Contact the San Jose employment law attorneys at the Costanzo Law Firm.

Sources:

eeoc.gov/sexual-orientation-and-gender-identity-sogi-discrimination#:~:text=SOGI%20Discrimination%20%26%20Harassment,%2C%20being%20gay%20or%20straight).

scholar.google.com/scholar_url?url=https://diversityatlas.io/wp-content/uploads/2023/08/2019-A-guide-to-fostering-an-LGBTQ-inclusive-workplace.pdf&hl=en&sa=X&ei=SV2KZ7v2ArO5y9YP3ZK1oAs&scisig=AFWwaebRpObcvN5B198o8kQvV6MB&oi=scholarr