Sexual Orientation Harassment

In California it is illegal for gay employees to be harassed or fired simply because their employers discover, and disapprove of, their sexual orientation.

California law protects employees from sexual orientation harassment and discrimination. California’s Fair Employment and housing Act (“FEHA”) states that it is an unlawful employment practice for an employer because of sexual orientation to harass an employee and that it shall be unlawful if the employer knows or should have known of this conduct and fails to take immediate and appropriate corrective action.

The California Code of Regulations, interpreting FEHA, defines harassment as follows: Harassment includes but is not limited to verbal harassment, physical harassment, and visual forms of harassment.

A gay employee who is personally subjected to offensive remarks can establish a hostile working environment by showing that he/she was subjected to harassment because he/she is gay.

Additionally, an employee who is not gay, but who is perceived to be gay, is also protected from unlawful harassment or discrimination.

Employers are liable for harassing conduct by non-employees where the employer either ratifies or acquiesces in the harassment by not taking immediate and/or corrective actions when it knew or should have known of the conduct.

An employee claiming harassment based on hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a hostile work environment. Whether an environment is “hostile” or “abusive” can be determined by looking at all the circumstances. These may include the frequency of the harassment; its severity; whether the harassment is physically threatening or humiliating; and whether the harassment unreasonably interferes with an employee’s work performance.

The most common types of sexual orientation harassment are:

  • gay-bashing comments;
  • anti-gay graffiti;
  • spreading malicious and homophobic rumors;
  • invading the employee’s privacy in order to confirm the employee’s sexual orientation.

If you have been subjected to harassment in the workplace either because you are gay or because you are perceived to be gay, even though you are not, you may have a claim.

Please feel free to contact us for a free confidential consultation, and let us put our experience and dedication to work for you. We will evaluate your situation and explain your legal options.