Like many other forms of discrimination, discrimination based on sexual orientation or gender identity is illegal under California and federal law. The first step to preventing discrimination at work is understanding your rights.
California's Fair Employment and Housing Act (FEHA) offers plaintiffs many advantages over its federal counterpart, Title VII of the Civil Rights Act of 1964. These advantages are particularly significant in the area of harassment.
The U.S. Office of Special Counsel (OSC) recently found that the Department of Army engaged in gender identity (transgender) discrimination against Tamara Lusardi, after Lusardi announced she was transitioning from male to female. The OSC is an independent federal investigative and prosecutorial agency tasked mainly with protecting federal employees from prohibited personnel practices (PPP) in violation of 5 U.S.C. § 2302. This particular law is limited to federal employees but it contains the same basic principles as the sections of Title VII of the Civil Rights Act of 1964 which relate to employment discrimination.
In a sexual harassment related case, a federal court in Alabama has permitted a male's sex-bias claim to proceed against a women's accessories company, Charming Charlie, after the company's manager made sexist and sexually harassing comments about men during the hiring process. Thereafter, the company offered the prospective employee a position but failed to give him a start date. The case is Owen v. Charming Charlie, No. 13-S-1009-S, 2013 WL 3968658 (N.D. Ala. July 31, 2013). According to the plaintiff employee, Courtney Owen, a male plaintiff, applied for a retail position at a Charming Charlie store. The manager of the store called him and offered a job interview. During the interview, the manager told Owen that she rarely hires males. Owen claims she further stated that men typically "don't like" the company's policy requiring all sales associates to wear six accessories while working." Owen claims he replied that he had no problem with the six accessory requirement, whereupon the hiring manager stated again that men typically do not like and "can't do" the dress code. She then told Owen that she "might be willing" to hire his on a temporary basis, and that if he followed the dress code, he "might" be hired on a permanent basis. The company sent Owen an offer letter the next day, together with the hiring documents. Owen completed the documents as requested and received a telephone message to join the "set-up team" to prepare for the grand opening of a new store. Owen attempted several times to follow up, but never heard back from the company. Owen then complained for sex discrimination/sexual harassment with the Equal Employment Opportunity Commission (EEOC) for having been denied employment on the basis of sex. Owen alleged in his complaint that "the accessories requirement and other policies have a disparate impact on male applicants and employees and intentionally discriminate against male applicants and employees, without sufficient business justification, and [defendant] knows this. In addition to its policies having a disparate impact and weeding out male applicants, respondent engages in a pattern and practice of intentional discrimination against males in the hiring process and in the terms and conditions of employment of any males who are hired and uses its accessories policy as a pretext for intentional discrimination in hiring and in other terms and conditions of employment."
If you are the victim of workplace sexual harassment, does it matter who you hire to represent you? Of course it does.
The right to work free from harassment or discrimination based on sex or gender is a civil right in California. Sexual harassment comes in many forms and includes unwanted and unwelcome visual, verbal or physical conduct that is of a sexual nature or sex-based including requests for sexual favors. Employees, independent contractors and even job applicants are protected. Both the company and the harasser are liable to the victim of harassment, although, different rules apply depending on whether the harasser is a co-worker or a supervisor. Companies are strictly liable for harassment by supervisors and managers.
The United States Supreme Court struck down laws against same sex marriage today. This ruling is a giant step in the evolution of our society away from sexual orientation discrimination.