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June is Pride Month! LGBTQ+ Employees are Protected in the Workplace.

Posted by Giovanna A. D'Orazio | May 31, 2023

Members of the LGBTQ+ community are protected from discrimination and harassment in the workplace under both New York State and federal law.  The New York Human Rights Law explicitly lists sexual orientation and gender identity as protected statuses, and the United States Supreme Court – in the landmark 2020 civil rights case Bostock v. Clayton County – found that Title VII's prohibition against sex discrimination encompasses both sexual orientation and gender identity.  

New York's law more expressly addresses issues relating to gender identity because of GENDA (the Gender Expression Non-Discrimination Act). Specifically, GENDA applied the protections of New York's human rights laws to gender identity and expression, which are defined as “a person's actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.” 

What does this mean?  Most of us are familiar with what it means to target someone because of their sexual orientation, i.e., someone's physical, romantic or emotional attraction to another person.  Some of us are more recently learning about gender identity and what it means to be transgender, i.e., that someone's gender identity is different from the one they were assigned at birth.  Individuals are also protected from gender stereotyping, i.e., you do identify as the same gender you were assigned at birth, but you don't, for example, dress in the way one expects a woman or a man to dress and you are targeted for that reason.

What is illegal? Anti-discrimination statutes prohibit employers from taking what we call an “adverse employment action” – like getting fired or not being promoted – against an employee because of that employee's protected status.  Most employees are “at will”, meaning they can be fired at any time for any reason, so the sticking point in any employment case is demonstrating that the employee was targeted because of their protected status and not some other reason, even if we don't agree with it.

These laws also protect employees from harassment based on their sexual orientation or gender identity.  When harassment rises to the level of a hostile work environment and, in extreme cases, to the employee's forced resignation, they can also have a claim under the anti-discrimination laws.  The law also encourages employees to complain about harassment, and those complaints – assuming they specifically raise the illegal reason – are protected from retaliation. 

What can I do if I am targeted?  Making an internal complaint to your boss or HR is always an option, and the law encourages this type of complaint particularly if the harasser or wrongdoer is a coworker.  Retaliation is always a risk, but this can be an opportunity for the employer to make things right.  You can also make a complaint to the EEOC (this is required to preserve federal claims) or to the New York State Division of Human Rights (this is optional).  Lawsuits are also an option and employees are allowed to make immediate claims in court under New York State law which, unlike federal law, does not require making a complaint to an agency first. 

This article is for informational purposes and should not be relied on as legal advice or in taking action at work.  Every situation is different and you should consult your employee handbook and consider speaking with an attorney to discuss your rights and options.

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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