Sexual Orientation Discrimination, Harassment or Retaliation

In a landmark ruling issued on June 15, 2020, the U.S. Supreme Court finally held that firing an employee, or harassing or discriminating against an employee simply for being gay or transgender,  is illegal and violates Title VII of the Civil Rights Act of 1964.

Three separate decisions came before the Supreme Court on appeal, in each case, the employer was alleged to have fired the employee because of their sexual orientation or gender identity.

• In Bostock v. Clayton County, Georgia, the employer fired a county employee for “unbecoming conduct” after he began participating in a gay recreational softball league.
• In Altitude Express v. Zarda,the employer fired a skydiving instructor days after he mentioned that he was gay.
• In & G.R. Harris Funeral Homes Inc. v. EEOC, a funeral home terminated a transgender employee’s employment after six years of employment following her announcement that she would begin living openly as a woman.

In each of those cases, the Supreme Court held that Title VII prohibits discrimination based on an employee’s sexual orientation or gender identity.

DISCRIMINATION BASED ON SEXUAL ORIENTATION OR GENDER IDENTITY

Discrimination based on sexual orientation or gender identity requires you to demonstrate: (1) membership in a protected class; (2) you satisfactorily performed your job; (3) you experienced an adverse employment action; and (4) you were treated differently from similarly situated employees who are not gay or have a different gender identity.

An adverse employment action means you must have suffered some harm with respect to an identifiable term or condition of your employment, such as termination, demotion, decrease in pay, a transfer, or reassignment with different responsibilities.

HARASSMENT/HOSTILE WORK ENVIRONMENT BASED ON SEXUAL ORIENTATION OR GENDER IDENTITY

A hostile work environment claim based on sexual orientation involves widespread and/or severe harassment that creates an intimidating, offensive, or hostile atmosphere that interferes with the employee’s ability to perform their job. Courts hold that for harassment to be illegal, it must rise beyond simple teasing, offhand comments, or isolated incidents that are not very serious. Harassment is illegal when it is frequent, severe, and/or results in termination, demotion, or other adverse employment actions that affect an employee’s job benefits, such as a transfer, reduction in hours, or change in work schedule.

When deciding whether the harassment rises to the level of creating a hostile work environment courts look at the totality of the circumstances, including the frequency of the harassing conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. A hostile work environment is one “pervaded with discriminatory conduct aimed to humiliate, ridicule, or intimidate, thereby creating an abusive atmosphere.”

Generally, an isolated incident does not constitute a hostile work environment unless it is severe and/or physically threatening in nature. Hostile environment claims typically involve repeated conduct that often occurs over a series of days, weeks, months, or even years.

IF YOU ARE EXPERIENCING DISCRIMINATION OR HARASSMENT BASED ON BEING GAY OR TRANSGENDER, YOU SHOULD REPORT IT IN WRITING.  IT DOES  NOT HAVE TO BE FORMAL, AN EMAIL IS FINE.  UNDERSTANDABLY, IT IS SCARY AND MANY EMPLOYEES DON’T REPORT IT BECAUSE THEY FEAR RETALIATION.  HOWEVER, IF YOU DON’T REPORT IT, YOU MAY NOT BE ABLE TO BRING A CLAIM. MOREOVER, IF YOUR EMPLOYER RETALIATES, THEN YOU HAVE A STRONGER CLAIM BECAUSE YOU REPORTED IT.

RETALIATION BASED ON SEXUAL ORIENTATION OR GENDER IDENTITY

If a manager, supervisor, or administrator terminates you, demotes you, reprimands you, or takes any other type of materially adverse action against you for reporting that you are being discriminated against or harassed based on sexual orientation or gender identity, you may have a claim against your employer for retaliation.

It is illegal for an employer to retaliate against you because you reported discrimination or harassment based on your sexual orientation or gender identity. Reporting harassment and/or discrimination is a protected activity. It is helpful to your claim if your employer’s retaliatory conduct occurs close in time to your complaint of sexual harassment or discrimination.

The Courts take a broad view of what constitutes retaliation. Retaliation can be subtle or blatant.  It consists of any negative action taken by an employer that would deter a reasonable employee from raising concerns or reporting discrimination or harassment.

Below is an inexhaustive list of examples of Retaliation.  However, retaliation is not limited to what is set forth below and consists of many things:

• Reprimanding the employee shortly after they report harassment or discrimination.
• Changing the employee’s schedule
• Denying the employee training opportunities
• Denying the employee a promotion
• A reduction in pay
• A reduction in hours
• Giving an employee a performance evaluation that is lower than it should be
• Transferring the employee to a less desirable position ot location
• Subjecting the employee to increased scrutiny
• Leaving the employee out of important meetings
• Constantly criticizing the employee

The Retaliation does not need to be employment or workplace-related if it stems from you reporting harassment or discrimination based on your sexual orientation or gender identity. Examples of non-related retaliation include:

• Your employer takes action against a family member.
• Your employer disparages you to others.
• A false report to the authorities.
• It can continue even after your employment ends.

Reporting harassment or discrimination does not shield you from discipline or discharge if your employer has legitimate reasons. But your employer must have a non-retaliatory and non-discriminatory reason for their actions. Your employer cannot make up a reason to terminate you when the real reason is that you reported harassment or discrimination. The burden is on the employee to demonstrate that the employer’s reason for terminating you is a pretext, meaning a dishonest reason not based on facts.

In order to pursue a claim for sexual harassment or discrimination claim:

• Your employer must have at least 15 employees; and
• You must also file a charge of discrimination with Equal Employment Opportunity Commission (EEOC) or South Carolina Human Affairs Commission (SCHAC) within 300 days of the alleged discriminatory conduct. It is preferable to have an experienced employment lawyer draft your charge. However, you don’t need a lawyer to file a claim with the EEOC or SCHAC. You can file a claim with these agencies on your own. See https://www.eeoc.gov/how-file-charge-employment-discrimination  Or go to the SC Human Affairs Commission website. https://schac.sc.gov/employment-discrimination/how-file-employment-complaints.