Sexual Orientation Discrimination
The Fair Employment and Housing Act (“FEHA”) outlaws workplace discrimination on account of sexual orientation. Proof of sexual orientation discrimination may be direct, i.e., employer statements explicitly referring to sexual orientation, or indirect and circumstantial, i.e., inferred by the facts and the surrounding circumstances. An employee who cannot produce direct evidence of sexual orientation discrimination may nevertheless create an actionable inference of sexual orientation discrimination by making out a so-called prima facie case, usually as follows:
- The employee is in the protected class, e.g., he or she is of a particular sexual orientation.
- The employee was treated adversely in the workplace, e.g., fired, harassed, denied promotion.
- Employees in the same classification who were of a different sexual orientation were not treated adversely, or the employee was replaced by someone of a different sexual orientation.
Sexual orientation may also be inferred by statistics. In addition, even if the employer tries to explain the adverse employment decision as being the result of a supposedly “legitimate” business decision,” e.g., the employee was purportedly not meeting job performance standards, an employee may adduce evidence demonstrating that the employer’s so-called “legitimate business reason” was a “pretext'” or a ruse, designed to “mask” the true reason for the adverse employment decision, i.e., sexual orientation discrimination. Employees can rebut or counter a pretextual, so-called “legitimate business reason,” by showing that (1) the supposed “legitimate business reason” does not make business sense, (2) other employees of different sexual orientation in the same situation were not subjected to the same adverse treatment or (3) the employer has given multiple or inconsistent explanations for the adverse employment decision which suggest dishonesty.
Quick action is usually required when an employee suspects he or she may have been subjected to sexual orientation discrimination because in most cases the employee must file a complaint with the Department of Fair Employment and Housing within one year. Early action is also advisable in order to preserve evidence that would be critical in proving a claim, e.g., witness statements, depositions, documentary evidence and personnel records.
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