Sexual Orientation Discrimination


UPDATE on LGBTQ Rights in the Workplace

On June 15, 2020, the Supreme Court of the United States rendered a decision upholding the rights of LGBTQ employees in the workplace. In a 6-3 decision, the Court stated Title VII of the Civil Rights Act of 1964 applies to sexual orientation and gender identity and expression. Sexual orientation and gender identity are protected classes under federal law.

The law prohibits employers from making negative employment decisions based on an employee’s or job applicant’s sexual orientation or gender identity and expression. This federal decision applies to any workplace with 15 or more employees throughout the United States.

You should never have to feel intimidated, harassed, or frightened by workplace discrimination. You deserve the equal chance to earn a meaningful living – you deserve to be respected and treated well.
Despite the unbelievable strides our society has made towards gay and lesbian (LGBT) acceptance and equality, widespread discrimination still exists. Individuals are highly affected by employment sexual orientation discrimination workplaces.

What is Sexual Orientation Discrimination?

Despite making great strides in gender and sex equality, discrimination based on sexual orientation (LGBT) is still a major area of contention in the American workplace. Sex and gender discrimination occurs when an individual is harassed based on an individual’s actual, or perceived sexual orientation. This can occur if the employee is lesbian, homosexual (gay), bisexual, asexual, pansexual, Bi-curious or straight (heterosexual). Employees have even been discriminated against because of who they have an attraction to, which is called Affinity Orientation Discrimination. Affinity orientation discrimination occurs when an employee or applicant is treated differently because of who they have are attracted to for personal and intimate relationships. This is also a form of sexual orientation discrimination and is illegal. Much like race, America still has much work to do with respect to sexual orientation discrimination or LGBT discrimination. This type of employment discrimination disproportionality impacts employees of our LGBT community. Certain federal laws such as the Title VII of the Civil Rights Act of 1964, Equal Pay Act of 1963 and Pregnancy Discrimination Act have attempted to level the playing field, but these acts mean nothing if brave individuals don’t come forward and work with sexual orientation discrimination attorney’s in order to hold devious employers accountable for their actions. If you have been exposed to this type of employment discrimination contact the sexual orientation discrimination lawyers for a free consultation today.

Is Sexual Orientation Discrimination Illegal?

Sexual orientation is not protected class under federal law like the traditional classes of race, color, sex, religion, national origin, age, and disability are for employers. However Many local cities within New York, Florida, New Jersey, and Pennsylvania have laws that prohibit discrimination based on sexual orientation. In-fact in 1975, Pennsylvania became the first state to ban public sector employment discrimination based on sexual orientation. New York State followed in 1983 with sexual orientation discrimination protection for state employment and New Jersey enacted sexual orientation discrimination protection in 1991 for state employment. New York and New Jersey now have sexual orientation discrimination and gender identity discrimination protections for all employees within the states. Pennsylvania has sexual orientation discrimination and gender identity discrimination for only state employees.

Under law discrimination based on sexual orientation can occur at any time during the employment relationship. From the initial job application through the last day on the job. In many cases, sexual orientation-based discrimination are accompanied by sexual harassment in the workplace. Both are violations of Title VII of the Civil Rights Act of 1964 as well as state and city laws. Employment discrimination on the basis of sexual orientation or gender identity is a form of sex discrimination.


In an effort to reduce the stigma of HIV related discrimination and health inequities a central goal of the Obama Administration was to reduce discrimination against those persons living with HIV. For this, the EEOC has proven critical in stamping out employment discrimination based on an individual’s positive HIV status.

The American with Disabilities Act (ADA) prohibits employers, not only from discriminating against individuals with disabilities, but also individuals who are regarded as having an disability. The general definition of disability includes individuals who have been discriminated against due to actually or perceived impairment, which easily covers an HIV – positive individual. HIV substantially limits major life activities, such as a functioning immune system.

An individual with a disability is a qualified individual under the ADA if they meet the job related requirements and is able to, with or without reasonable accommodation, perform the essential functions of the job. If a person with HIV, or a person who is known to associate or have any type of relationship with an individual who is HIV positive, can perform the essential job functions and meets the job related requirements, yet an employer refuses to hire, promote, terminates or denies an individual the privileges of employment based on an individual’s HIV status, or associations, then that individual may have a cause of action for employment discrimination and should contact our experienced discrimination attorney’s at the Derek Smith Law Group, PLLC.

Under the CCHR, discrimination includes any discrimination based on gender identity, gender expression and transgender status. This includes an intersex individual. This can be based on a person’s perceived or actual gender identity, which does not have to conform to ones assigned gender at birth or in the ways in which a person expresses said gender, whether in communication or appearance. Specifically, when a person is treated “less well than others on account of their gender” that constitutes gender discrimination in the City of New York. Harassment is counted as a form of discrimination under the CCHR, which can be a single isolated incident of disparate treatment, or a pattern of behavior. This disparate treatment often manifests itself as harassment, but includes behavior which creates an environment or culture of sex stereotyping, degradation, humiliation, bias or objectification; this is to include unwanted sexual advances or requests for sexual favors. While sexual harassment is often the subject of this type of claim, the CCHR does not limit this type of behavior to sex.

In the context of employment, the CCHR prohibits an employer from hiring, firing, failing to promote or setting different terms and conditions of employment, including work assignments, employee benefits and keeping a workplace free from harassment, based on an individual’s gender.

Some specific forms of harassment covered by the CCHR include the failure to use an individuals preferred name or pronoun, refusing to allow an individual to utilize same-sex facilitates and programs consistent with their gender, sex stereotyping, imposing different uniforms or grooming standards based on sex or gender, providing employee benefits that discriminate based on gender, considering gender when evaluating request for accommodations, engaging in discriminatory harassment or engaging in retaliation.

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How Does the Law Define “Sexual Orientation”?

SONDA defines sexual orientation as “heterosexuality, homosexuality, bisexuality, or asexuality, whether actual or perceived.” Thus, the law affords protection where individuals are targeted either based on their actual sexual orientation, or based on what the discriminator believes their orientation to be.

For example, you may have been called “gay,” “homo,” or “faggot” by your co-workers – yet you identify as heterosexual. You may still have a claim for sexual orientation discrimination under New York’s SONDA law.

Does Discrimination Cover Harassment?

Yes, if you were harassed at work due to your actual or perceived sexual orientation, you may have a legal claim for discrimination. Overall, SONDA covers employment discrimination in every area of your job.

For example, an employer may have refused to hire you because you are gay. In another scenario, your co-workers might have taunted you for identifying as a transgender person. Either case may be considered LGBT discrimination.

How to Prove Sexual Orientation Discrimination?

Our sexual orientation discrimination lawyers at Derek Smith Law Group understand the law backwards and forwards. We know the burden of proof is on you to show a direct correlation between your sexual orientation and the adverse actions taken by your employer. However, employers rarely acknowledge discriminatory activities. Most cases of discrimination are based on circumstantial evidence – yet using our knowledge and experience, our attorneys can build a solid case in your favor.

Relying on circumstantial proof of intentional discrimination require a three-step process:

First, you must present sufficient evidence to show a cause and effect relationship between the challenged action (e.g., failure to promote, hire, etc.) and your sexual orientation. This is what is referred to as your prima facie case.
Second, your employer must respond by simply offering a legitimate non-discriminatory reason for the action. This is called satisfying the burden of production.

Third, you must present evidence proving, despite the excuses offered by your employer, that the adverse action was motivated by his or her intention to discriminate. This is called the burden of persuasion and may be achieved, for example, by proving that the reason offered by the defendant is merely a pretext for actual discrimination.

In cases alleging intentional discriminatory actions, you carry the ultimate burden of persuading a court that the actions of your employer were motivated by a discriminatory intent regarding your sexual orientation. Having an experienced attorney to guide your case and help you gather evidence, witnesses and expert testimony can make the difference in having a successful resolution to your complaint.

Discrimination based on sexual orientation may seem very clear to victims, but strong proof must be provided to prevail in a sexual orientation discrimination lawsuit. Lacking such proof makes for a very weak case. However, our sexual orientation discrimination lawyer help clients better understand the difference between lawful and discriminatory behavior in the workplace.

Complete a Free Case Evaluation form or call (800) 807-2209 today.

Contact Our Sexual Orientation Discrimination Attorneys

Do not be the victim of sexual orientation discrimination. Our experienced sexual orientation discrimination attorneys are ready to fight for and protect your rights as an employee. Our sexual orientation attorney’s goal is to get the best possible results for you in your sexual orientation discrimination case. If you have questions about sexual orientation discrimination in the workplace or would like to speak with us regarding your sexual orientation case, contact us at 800-807-2209 for a free consultation and charge no fee unless we recover for you in your sexual orientation discrimination EEOC claim or lawsuit.


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With over 25 years of experience, we have represented thousands of employment discrimination victims. We have recovered millions for our clients, including the largest emotional distress jury verdict in an employment law case ever to be sustained on appeal!

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