Call Firm Now
(510) 444-7717
Fighting for Employees Since 1978
Photo of Oakland\'s Lake Merritt at night

H&R Weekly

H&R Weekly

Topic of the Week  Sexual Orientation Discrimination

  • What if my employer does not know my sexual orientation?
  • Can I be asked not to discuss my sexual orientation or display a picture of my same-sex partner at work?
  • What is the difference between sexual orientation discrimination and gender identity discrimination?

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?

If you live in a state or city with provisions which make discrimination on the basis of sexual orientation illegal, the answer would generally be no, especially if other employees are allowed to discuss activities with their spouses or opposite-sex partners, or to display pictures of their spouses, opposite-sex partners, or children on their desks.

In the absence of any legal protections, however, private sector employees are employed "at-will," which means the employer has the right to terminate your employment at any time, for no reason at all or for any reason (including a bad one), so long as the reason is not illegal even if your performance has been outstanding. Therefore, if you disobey your employer's request, you may find yourself without any legal recourse.

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. Even if there are not legal protections affecting your employment, you may be able to encourage your employer to voluntarily change its discriminatory policies and/or to educate others in your workplace to help improve your employment situation.

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. 

While 22 states and the District of Columbia make it illegal to discriminate on the basis of sexual orientation, only nineteen states and D.C. define 'sexual orientation' to either include 'having or being perceived as having a self- image or identity not traditionally associated with one's biological maleness or femaleness, or specifically make it illegal to discriminate on the basis of gender identity. In other states, where courts have analyzed the state's sexual orientation anti-discrimination law, courts have been divided: some narrowly interpreting the laws to exclude gender identity, while others interpret the law to provide some protection with respect to gender identity.

Thought of the Week

"We know LGBTQ people face higher rates of economic instability, higher poverty, lower rates of employment and higher incidence of pre-existing conditions. You can make a pretty reliable assumption that LGBTQ people are facing serious economic consequences from the pandemic. The idea that LGBTQ people could be more vulnerable simply because of who they are is unacceptable. It was already imperative that we enact these protections, and this crisis has laid bare how critical it is."

–harita Gruberg, director of policy at the Center for American Progress

Weekly Comic by Jerry King

Weekly Comic by Jerry King

Blog of the Week

Why temporary layoffs may become permanent

Forty-two percent, or 11.6 million, of all jobs lost through April 25 due to Covid-19 will become permanent, according to the University of Chicago.

Top Five News Headlines

  1. For essential workers, curfews add new stress
  2. HEROES Act Would Expand The EITC For Childless Workers And Help Fight Recession
  3. Overhaul of small business rescue hits snags in Senate
  4. 5 Ways to Demonstrate Your Value — Remotely
  5. Facebook workers revolt against Zuckerberg as Trump posts continue to go unchallenged

List of the Week

from The National LGBTQ Advocacy Group Human Rights Campaign and PSB Research

  • 17% of LGBTQ people had lost their jobs because of COVID-19, compared to 13% of the general population
  • 1 in 3 LGBTQ respondents had their work hours reduced, compared to about 1 in 5 in the general population
  • 11% of LGBTQ respondents reported requesting rent delays, compared to 8% of the general population
  • 29% of LGBTQ respondents reported having access to paid medical leave if they or a family member were to get sick

Archive