What is Sexual Orientation?
Sexual orientation generally refers to a person who identifies as heterosexual, gay, lesbian, bisexual, or transgender/transsexual.
California law specifically protects heterosexuals, homosexuals (gays and lesbians), and bisexuals from sexual orientation discrimination. It further protects transsexuals and transgender persons from discrimination. Transsexuals and transgender persons are those who by their identity, appearance, and/or behavior appear to be of a different sex (meaning, male or female) or gender than at birth.
Federal and state laws differ on whether an employer may discriminate against employees or job applicants because of their sexual orientation or gender, but in California, the law is clear that it cannot be done.
What is Gender?
Gender has nothing to do with a person’s sexual orientation, but rather, it refers to the behavioral, cultural, or psychological traits typically associated with one sex. For example, when a person says that a woman is acting and dressing “too much like a man,” that person is referring to that woman’s gender. Gender is often hard to distinguish from sex and sexual orientation because of social and cultural expectations about how a man or woman “should” behave.
Sexual Orientation and Sexual Harassment
Although federal law may not protect an employee who has been discriminated against because he is gay, a gay employee may be able to bring a hostile environment sexual harassment or gender discrimination claim in lieu of a sexual orientation discrimination claim.
For instance, a court held that co-workers who repeatedly taunted a gay male employee for acting “like a woman” and referring to him as “her,” created a sexually hostile work environment. Thus, a gay man harassed as such would have a discrimination claim on the basis of sex under federal law.
In another California case, a man who was openly gay worked as a butler for MGM Grand Hotel. Because co-workers repeatedly grabbed him from behind, touched his body, grabbed his genitals, taunted him by calling him feminine names and endearments, and ridiculed him for walking in a feminine manner, the California Ninth Circuit held that the man had a sexual harassment claim and may also have sufficient gender discrimination claim, as well.
What is Gender Discrimination?
Any adverse employment action taken because an employer or co-worker believed that a male or female employee did not conform to a certain gender norm, constitutes gender discrimination and is actionable under both state and federal law.
What are some examples of gender discrimination?
- A woman who is fired for “failing to act like a woman” has a right to bring a claim for gender discrimination.
- Similarly, a man who is fired for “acting too feminine” has a right to bring a claim for gender discrimination.
- Remedies for sexual orientation discrimination (in state court) and gender discrimination (in state and federal court)
Employees who are subject to unlawful termination and harassment may be liable to recover the following:
- Past lost wages and other benefits
- Future lost wages and other benefits
- General damages, including emotional distress and pain and suffering
- Punitive damages
- Attorney’s fees
- Injunctive relief