Orange County Gender & Sexual Orientation Discrimination Attorney
In California, it is illegal for an employer to discriminate against a person based on their gender or sexual orientation. Additionally, it’s unlawful to discriminate against an employee based on what an employer perceives someone’s sexual orientation to be. Despite California’s Fair Employment and Housing Act (FEHA) making it illegal and attempting to prevent this type of discrimination, it continues to occur in the workplace.
If you believe you’re being discriminated against as a result of your gender, sexual orientation, or what someone believes your sexual orientation is, it’s important to contact an Orange County sexual orientation and gender discrimination attorney immediately. Contact Sessions & Kimball’s employment attorneys in Orange County by using our online contact form or call us at (949) 380-0900 for a free consultation today.
Orange County Gender Discrimination
California’s FEHA & Fair Pay Act Make Gender Discrimination Illegal
Gender, like a person’s race, age, and whether they have a disability or not, is a protected class under state and federal law. California’s Fair Employment and Housing Act (FEHA) makes it illegal to discriminate against or harass an employee because of his or her actual or perceived sex, gender, gender identity, gender expression, or sexual orientation.
Additionally, the Fair Pay Act requires that employers offer equal pay to men and women who perform substantially similar work. The act also explicitly states that an employer may not retaliate against an employee who seeks to enforce the Equal Pay Act. Employers are not allowed to prohibit employees from discussing the pay of their co-workers, and they cannot punish an employee for inquiring about a co-worker’s pay.
What Is Substantially Similar Work?
Work is substantially similar when under similar working conditions, the job performed is similar in skill, effort, and responsibility.
It is illegal for employers to take any of the following actions in the workplace:
- Treating an employee differently based on their gender or gender identity
- Enforcing workplace policies or practices that disparately impact individuals based on their gender or gender identity
- Retaliating against an employee who complains about disparate treatment or disparate impact of workplace policies or practices.
Additionally, it is illegal for an employer to make decisions about any of the following activities based on a person’s gender:
- Raises and other compensation
- Access to training
- Benefits – health insurance, vacation, bonuses, overtime pay, etc.
- Any other terms of employment that leads to disparate treatment due to a person’s gender
What An Employee Needs For An Unequal Pay Claim
To be successful in an unequal pay claim, an employee must prove that they are being paid less than an employee of the opposite sex even though they are performing substantially similar work. Once the employee is able to establish this, it is up to the employer to provide a legitimate reason for the pay difference.
Can An Employer Ever Discriminate Based On Sex or Gender?
If an employer can demonstrate that sex or gender is a bona fide occupational qualification under the California Code of Regulations, the employer may be able to make hiring, firing, and other workplace decisions on the basis of sex or gender. The employer must prove that they are making decisions on this basis due to safety and health risks. Additionally, some employers might be able to discriminate based on sex due to privacy concerns. For example, some prisons are permitted to hire only female prison guards at the female prisons.
Protection Against Harassment
It’s important to note that sexual harassment is a form of gender discrimination. Both women and men also have the right to obtain and perform their jobs without suffering unwanted sexual demands or unwanted sexual communications and behavior. California’s FEHA expressly prohibits harassment based upon gender or sexual orientation, whether through verbal, physical, or visual harassment. Harassment means more than just unwanted touching or repeated sexual propositions. It can include:
- Derogatory comments or slurs
- Rubbing against someone
- Assaultive and/or physical interference with their job duties or their movement around the workplace
- Leaving in plain sight derogatory cartoons, drawings or posters
- Lewd gestures, and leering in the workplace
Employment Discrimination Based on Sexual Orientation
FEHA specifically lists sexual orientation, gender identity, and gender expression as protected classes, whether or not the employee actually has the perceived characteristic. Protection under federal law is much more limited. Federal law does not currently provide specific protection against discrimination and harassment for LGBTQ employees, but it does protect an LGBTQ employee for failure to conform to stereotypical gender norms. An example would be discriminating against a lesbian because she does not act like a stereotypical woman.
Protection against discrimination in California under FEHA applies to homosexual, bisexual, transgender, and heterosexual employees. Discrimination on the basis of an employer’s assumption about an employee’s sexual orientation is also illegal, whether or not that assumption is valid. Most employers with five or more employees are bound by California’s FEHA laws.
Examples of prohibited gender and sexual orientation discrimination in California include:
- Failing to hire someone or withdrawing a job offer previously extended because of that person’s gender, gender identity, gender expression, or sexual orientation.
- Wrongful termination because the employer believes the employee is in a same-sex relationship.
- Promoting less qualified employees who are not LGBTQ or who are of a specific gender.
- Failing to promote an employee because of gender, gender identity, gender expression, or sexual orientation.
- Paying an employee less than others are receiving for performing substantially similar work because of their gender or sexual orientation.
- Creating a hostile work environment through repeated romantic overtures, sexual comments, jokes, or prying into one’s personal affairs
- Forcing female-presenting employees to wear dresses or skirts to work
Protecting California Employees against Gender and Sexual Orientation Discrimination
At Sessions & Kimball, we exclusively focus on protecting employee’s rights. Our attorneys are listed among California Super Lawyers®, and our firm has been named one of the region’s “Best Law Firms” by U.S. News and World Report. We have recovered millions of dollars in settlements for our clients. If you are facing sexual orientation or gender discrimination in the workplace, this is completely unacceptable and not something you have to tolerate. Contact us today by using our online contact form or call us at (949) 380-0900 for a free consultation