Sexual Orientation Discrimination: Facts for New York Employees
Sexual orientation discrimination in the workplace is prohibited by federal and New York law. Employees and job applicants in New York may have legal protections when they are treated differently because of their actual or perceived sexual orientation.
This page provides information about sexual orientation discrimination, LGBTQ workplace discrimination, sexual orientation harassment, retaliation, EEOC claims, and employee rights in New York.
What Is Sexual Orientation Discrimination?
Sexual orientation discrimination occurs when an employer treats an employee or job applicant differently because of the person’s actual or perceived sexual orientation.
Discrimination can occur during hiring or at virtually any point during employment, including termination, compensation, promotions, job assignments, discipline, training, benefits, and other terms and conditions of employment.
New York’s Sexual Orientation Non-Discrimination Act (SONDA) protects individuals from discrimination based on actual or perceived heterosexuality, homosexuality, bisexuality, or asexuality. (New York State Attorney General)
Is Sexual Orientation Discrimination Illegal in New York?
Yes.
Title VII of the Civil Rights Act of 1964 prohibits covered employers from discriminating because of sex. In Bostock v. Clayton County, the U.S. Supreme Court held that discrimination because of sexual orientation constitutes discrimination because of sex under Title VII. (EEOC)
The EEOC identifies sexual orientation as protected under Title VII and states that sex discrimination protections apply to employment decisions including hiring, firing, pay, promotions, job assignments, training, benefits, and other terms and conditions of employment. (EEOC)
New York also provides independent protection through SONDA and the New York State Human Rights Law. Employees working in New York City may have additional protections under the New York City Human Rights Law. New York’s Attorney General identifies sexual orientation as a protected characteristic in employment. (New York State Attorney General)
The laws and procedures that apply can depend upon the employee, employer, workplace location, and circumstances.
Can You Be Fired for Being Gay in New York?
Generally, an employer covered by applicable anti-discrimination laws cannot fire an employee because the employee is gay, lesbian, bisexual, heterosexual, asexual, or perceived to have a particular sexual orientation.
A termination may potentially constitute unlawful discrimination when the facts indicate that sexual orientation played a role in the employer’s decision.
Evidence can include discriminatory statements, changes in treatment, inconsistent explanations for termination, unequal treatment of other employees, or other circumstances suggesting discriminatory intent.
Can an Employer Refuse to Hire Someone Because of Sexual Orientation?
Generally, no.
Sexual orientation discrimination can occur before an applicant becomes an employee. A covered employer generally cannot refuse to interview or hire an otherwise qualified applicant because of actual or perceived sexual orientation.
Discriminatory questions, statements, assumptions, or treatment during the hiring process may be relevant to a potential employment discrimination claim. Federal law prohibits discrimination based on sexual orientation in covered employment decisions, including recruitment and hiring. (EEOC)
Can I Be Denied a Promotion Because of My Sexual Orientation?
An employer generally cannot deny an employee a promotion or other employment opportunity because of sexual orientation when prohibited by applicable law.
Potential evidence can include performance evaluations, qualifications, communications from supervisors, treatment of similarly situated employees, and changes in the employee’s responsibilities or opportunities.
New York employers must provide equal employment opportunities and equal terms and conditions of employment regardless of sexual orientation. (New York State Attorney General)
What Are Examples of Sexual Orientation Discrimination at Work?
Examples may include:
- Refusing to hire an applicant because of sexual orientation;
- Firing an employee because of sexual orientation;
- Denying a promotion;
- Paying an employee less because of sexual orientation;
- Giving an employee less desirable assignments;
- Denying training or professional opportunities;
- Treating an employee differently from coworkers;
- Making derogatory comments or jokes;
- Using offensive slurs or stereotypes;
- Treating an employee differently because of a same-sex relationship;
- Subjecting an employee to sexual orientation harassment; or
- Retaliating against an employee who complains about discrimination.
Whether particular conduct violates the law depends upon the facts and the applicable federal, state, and local laws.
What Is Sexual Orientation Harassment?
Sexual orientation harassment involves unwelcome conduct directed at an employee because of actual or perceived sexual orientation.
It may include offensive comments, jokes, insults, slurs, stereotypes, or other unwelcome conduct related to an employee’s sexual orientation.
The EEOC recognizes harassment based on sexual orientation as sex-based harassment under Title VII. (EEOC)
Harassment can involve supervisors, coworkers, or, depending upon the circumstances, other people in the workplace.
What Is LGBTQ Workplace Discrimination?
LGBTQ workplace discrimination is a broad term commonly used to describe discrimination against LGBTQ employees.
It may involve sexual orientation discrimination or, depending upon the circumstances, discrimination based on gender identity or transgender status. These are related but distinct legal concepts.
Federal and New York law provide protections concerning sexual orientation and, separately, gender identity and gender expression. (EEOC)
The specific laws and potential legal claims depend upon the facts of the particular case.
Can My Employer Retaliate Against Me for Complaining About Discrimination?
Retaliation may be unlawful.
Federal law protects employees from retaliation for certain protected activities, including complaining about discrimination, filing an EEOC charge, or participating in an employment discrimination investigation or proceeding. (EEOC)
Potential retaliation can include:
- Termination;
- Demotion;
- Discipline;
- Reduced hours;
- Unfavorable assignments;
- Increased scrutiny;
- Exclusion from opportunities; or
- Other adverse treatment.
New York also protects employees who engage in protected activity concerning workplace discrimination or harassment. (New York State Attorney General)
If your treatment at work changed after you complained about sexual orientation discrimination, the timing and circumstances may be important.
Can I File an EEOC Charge for Sexual Orientation Discrimination?
Potentially, yes.
Because sexual orientation discrimination is covered by Title VII, an employee may have the right to file a Charge of Discrimination with the EEOC. (EEOC)
There are deadlines for filing an EEOC charge, and the applicable deadline depends upon the circumstances and jurisdiction. New York employees may also have potential claims under New York State and local anti-discrimination laws.
Because different laws and forums can have different filing requirements and deadlines, employees should consider obtaining legal advice promptly.
Can I File a Sexual Orientation Discrimination Claim Under New York Law?
Potentially, yes.
SONDA prohibits discrimination based on actual or perceived sexual orientation in employment and other areas covered by the law. (New York State Attorney General)
Depending upon the circumstances, an employee may also have rights under the New York State Human Rights Law or a local human rights law.
New York’s Attorney General explains that an individual may have different options for pursuing a discrimination claim, including administrative proceedings and court actions, with different deadlines and consequences. (New York State Attorney General)
What Should I Do If I Believe I Am Being Discriminated Against?
If you believe you are experiencing sexual orientation discrimination at work, consider:
Documenting what happened. Keep a record of significant incidents, including dates, locations, individuals involved, and what was said or done.
Preserving evidence. Keep relevant emails, text messages, performance evaluations, disciplinary documents, and other communications that you are lawfully permitted to retain.
Identifying witnesses. Make a list of individuals who may have witnessed discriminatory conduct or have relevant information.
Keeping track of deadlines. Employment discrimination claims can have important administrative and litigation deadlines.
Considering legal advice. An employment attorney can evaluate the facts, identify potentially applicable laws, and explain your options.
Sexual Orientation Discrimination Lawyer in New York
If you believe you have experienced sexual orientation discrimination, LGBTQ workplace discrimination, sexual orientation harassment, retaliation, or wrongful termination, the Law Office of Joseph F. Kilada can evaluate your situation.
The firm represents employees in employment discrimination matters throughout New York City and Long Island, including Manhattan, Brooklyn, Queens, the Bronx, Staten Island, Nassau County, and Suffolk County.
The firm also serves employees in other areas of New York State, depending upon the circumstances of the matter.
If you believe you were fired, denied a promotion, paid less, harassed, treated differently, or otherwise discriminated against because of your sexual orientation, contact the Law Office of Joseph F. Kilada to discuss your situation and potential legal options.
This page provides general information and is not legal advice. Employment discrimination laws, filing deadlines, procedures, and available remedies depend upon the facts and circumstances of each case.