New York Sexual Orientation Discrimination Lawyer
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What Is Sexual Orientation Discrimination?
Sex-based discrimination occurs in the workplace when an applicant or employee is treated differently because of their actual or perceived sexual orientation – whether they are lesbian, gay, bisexual, asexual, pansexual, or heterosexual. In June of 2020, the U.S. Supreme Court ruled, in Bostock v. Clayton County, Georgia, No. 17-1618 (S. Ct. June 15, 2020), that Title VII of the Civil Rights Act of 1964 prohibits this type of conduct. It stated that the ban on sex discrimination applied to sexual orientation as well.
Title VII applies to both private sector and public sector employers and provides that discrimination in any aspect of employment is unlawful.
An employer may be considered to have violated the law if they engaged in discrimination by doing any of the following because of a person’s actual or perceived sexual orientation:
- Declining an applicant,
- Denying a promotion,
- Assigning an employee to a particular role,
- Demoting an employee,
- Laying off an employee,
- Denying training offered to other employees,
- Not offering the same fringe benefits that other employees receive, or
- Engaging in any other conduct that negatively affects a person’s employment
New York state law also prohibits employers from discriminating against a person because of his/her sexual orientation. The Sexual Orientation Non-Discrimination Act (SONDA) that was passed in 2002 bans sexual orientation discrimination, based on a definition of sexual orientation as homosexuality, bisexuality, asexuality, or even heterosexuality, whether actual or perceived.
Furthermore, the New York City Human Rights Law provides protection based on both sexual orientation and sexual identity. This city ordinance allows a plaintiff’s attorneys fees to be covered by an employer found to have violated the law.
What Are Examples of Sexual Orientation Discrimination?
Although laws exist prohibiting workplace discrimination based on someone’s sexual orientation, this type of conduct is still apparent throughout the country.
Some examples of sexual orientation discrimination include:
- An employer deciding not to hire a well-qualified applicant because he mentioned his boyfriend during the interview.
- A restaurant refusing to hire a heterosexual server, even though they are the best candidate, because most of the patrons are homosexual.
- A supervisor writing up an employee they perceive as homosexual with no basis for the write-up.
- A colleague making sexual comments to a co-worker they know is gay.
- A company promoting only employees of a certain sexual orientation.
- A supervisor who has made sexual advances to his male subordinate and threatens to fire him if he doesn’t go out with him.
What Is Sexual Orientation Harassment?
As a result of unfair or lax policies or practices, employees may suffer harassment because of their sexual orientation. Harassment is unwanted conduct that occurs frequently and is so severe that it causes a hostile work environment. It may also have harmful effects on the individual’s employment, such as being fired or demoted.
Sexual orientation harassment comes in many forms and often makes the person being harassed feel humiliated or offended. Jokes, rude comments, requests for sexual favors, and unwelcome sexual advancements, among other things, can all be considered harassment. Such behaviors can be perpetrated by anyone in the company, including supervisors and co-workers. Additionally, the conduct does not have to be committed by a person of the opposite sex for it to be considered harassment.
If you’ve been subjected to workplace harassment because of your sexual orientation, reach out to our New York attorneys today to discuss your legal options.
Let Us Protect Your Rights Today
Our New York employment litigation lawyers can analyze your situation and develop an effective strategy to hold individuals and companies responsible for their actions. We want to stop you bearing the burden of discrimination, and we will do our best to obtain the compensation you deserve. If you have been subjected to discrimination based on sexual orientation or gender identity, we are committed to fighting for you and your right to equal treatment in the workplace.
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Frequently Asked Questions About: Sexual Orientation Discrimination
Sexual orientation discrimination can include refusing to hire someone because they’re gay, denying a promotion to a lesbian employee, or creating a hostile work environment through anti-LGBTQ+ comments or jokes. For example, if a qualified candidate is passed over for a position after the employer learns about their same-sex partner, or if coworkers consistently make derogatory remarks about someone’s sexual orientation, these constitute illegal discrimination.
Other examples include excluding LGBTQ+ employees from networking events, denying equal benefits to same-sex couples, harassment like displaying offensive materials, or treating someone differently after they come out at work. The discrimination can be direct (explicitly based on sexual orientation) or indirect (using policies that disproportionately affect LGBTQ+ employees).
Yes, the Supreme Court’s landmark 2020 decision in Bostock v. Clayton County established that Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on sexual orientation. The Court ruled that discrimination against gay or lesbian employees necessarily involves treating them differently because of their sex, which violates Title VII’s prohibition on sex discrimination.
This federal protection applies to employers with 15 or more employees and covers all aspects of employment including hiring, firing, promotions, compensation, and working conditions. Before Bostock, protection varied significantly by state, but now sexual orientation discrimination is prohibited nationwide under federal law.
Sexual orientation discrimination occurs when an employer treats employees unfavorably because of their actual or perceived sexual orientation – whether gay, lesbian, bisexual, or heterosexual. This includes adverse employment actions like termination, demotion, or denial of opportunities, as well as creating a hostile work environment through harassment or offensive conduct.
The discrimination doesn’t require proof that the employee actually has a particular sexual orientation – it’s enough that the employer acted based on their perception or assumption. This protection also extends to situations where someone faces discrimination for associating with LGBTQ+ individuals or for supporting LGBTQ+ rights in the workplace.
The four main types of workplace discrimination are: (1) direct discrimination – explicitly treating someone less favorably because of a protected characteristic, (2) indirect discrimination – applying neutral policies that disproportionately impact protected groups, (3) harassment – creating a hostile environment through unwelcome conduct, and (4) victimization – retaliating against someone for asserting their rights or supporting others’ discrimination claims.
For sexual orientation specifically, direct discrimination might involve firing someone for being gay, while indirect discrimination could involve policies that unfairly impact LGBTQ+ employees. Harassment includes anti-gay slurs or offensive jokes, and victimization occurs when someone faces backlash for reporting LGBTQ+ discrimination or supporting a colleague’s complaint.
To prove sexual orientation discrimination, you need evidence showing that adverse employment action was taken because of your sexual orientation. This can include direct evidence like discriminatory comments, emails, or explicit statements, or circumstantial evidence like suspicious timing, different treatment compared to heterosexual colleagues, or patterns of bias.
Document everything: keep records of discriminatory comments, unequal treatment, policy violations, and any witnesses. Compare how you’re treated versus similarly situated heterosexual employees in terms of opportunities, discipline, or benefits. Email communications, performance reviews that suddenly became negative after coming out, and witness testimony can all help establish a pattern of discriminatory treatment.
Indirect sexual orientation discrimination occurs when an employer applies a seemingly neutral policy or practice that disproportionately disadvantages LGBTQ+ employees without legitimate business justification. For example, a company policy that only recognizes “traditional marriage” for benefits purposes would indirectly discriminate against employees in same-sex marriages.
Other examples include dress codes that unfairly target gender non-conforming expression, social events that exclude same-sex partners, or promotional criteria that subtly favor “traditional family” arrangements. Even if the policy doesn’t explicitly mention sexual orientation, if it has a disparate impact on LGBTQ+ employees and isn’t job-related, it may constitute illegal discrimination.
Workplace discrimination based on sexual orientation includes any unfavorable treatment in hiring, firing, pay, job assignments, promotions, layoffs, training, benefits, or any other term or condition of employment. This could involve being passed over for advancement opportunities, receiving different disciplinary treatment, being excluded from workplace social activities, or facing harassment from supervisors or coworkers.
Discrimination also includes creating a hostile work environment through repeated offensive jokes, slurs, or comments about LGBTQ+ people, displaying anti-gay materials, or pressuring someone to hide their sexual orientation. The key is that the adverse treatment must be because of the person’s actual or perceived sexual orientation, not legitimate performance or conduct issues.
In workplace contexts, sexual orientation refers to an individual’s emotional, romantic, or sexual attraction to people of the same gender, different gender, or multiple genders. This includes being gay, lesbian, bisexual, heterosexual, or other orientations. Federal law now protects all sexual orientations from workplace discrimination.
What matters legally isn’t the person’s actual sexual orientation, but whether employment decisions were influenced by the employer’s knowledge or assumptions about their orientation. This means someone could have a discrimination claim even if they’re not actually LGBTQ+ but were treated poorly because their employer believed they were.
A real example might involve a highly qualified sales manager who receives excellent performance reviews until colleagues learn about their same-sex marriage. Suddenly, they’re excluded from client meetings, passed over for a promotion they were promised, and subjected to comments about “lifestyle choices” affecting “client comfort.” Despite continued strong performance, they’re eventually terminated for “not being a good cultural fit.”
Another example could be a job applicant who interviews well and seems likely to be hired until the interviewer notices their volunteer work with an LGBTQ+ organization on their resume. The employer then decides to “go with someone else” and gives vague reasons for not hiring them, despite their qualifications clearly matching the job requirements.
Many states and localities had sexual orientation protections before the Bostock decision, and these laws often provide broader coverage than federal protections. State laws may cover smaller employers (fewer than 15 employees), provide additional remedies like punitive damages, or include explicit protections for gender identity that go beyond federal interpretations.
Some state and local laws also provide stronger enforcement mechanisms, longer filing deadlines, or protection for additional categories like gender expression. Even with federal protection now available, these state and local laws remain important because they may offer more comprehensive remedies or cover situations that federal law doesn’t address.
