Employment Discrimination in California Based on Sexual Orientation

It is against the law for most employers to discriminate against a person based on sexual orientation. Employees who are discriminated against based on sexual orientation in the workplace can file a lawsuit against their employer for damages.

Below, our California employment discrimination lawyers discuss the following frequently asked questions about lawsuits for sexual orientation discrimination against California workers:

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Under the FEHA, it is an unlawful employment practice for an employer to discriminate against a person because of his or her perceived sexual orientation.

If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.

1. Is employment discrimination based on sexual orientation against the law in California?

Discrimination based on sexual orientation in the workplace is a violation of California law. Under the California Fair Employment and Housing Act (FEHA), it is illegal for an employer to discriminate against an employee based on sexual orientation.1

Discrimination based on sexual orientation includes that individuals real or perceived sexual orientation, including:

  • Gay
  • Lesbian
  • Straight
  • Homosexual
  • Heterosexual
  • Bisexual

It does not matter for the purposes of employment discrimination whether the sexual orientation is real or perceived. For example, if an employer discriminates against an employee because the employer thinks the employee is gay, it is not a defense for the employer if the employee is straight.

Under the FEHA, it is an unlawful employment practice for an employer to discriminate against a person because of his or her perceived sexual orientation. This includes:

  • Refusing to hire
  • Firing or discharging an employee
  • Refusing to select a person for a training program
  • Discriminating against a person in compensation or conditions of employment
  • Providing reduced or inferior benefits
  • Assigning inferior work duties2

It is also unlawful employment practice to discriminate against a person based on the person's gender identity or gender expression. Discrimination based on sex also includes a person's gender. This includes a person's gender identity and gender expression. Gender expression is a person's gender-related appearance and behavior and is not necessarily based on the person's sex assigned at birth.3

Employment discrimination also extends to the unions and labor organizations, which are also prohibited from excluding, expelling, or restricting membership to a person based on sexual orientation.4 Sexual orientation discrimination prohibitions also apply to apprenticeship training programs and employment agencies.56

Sexual orientation protection laws are intended to protect employees from discrimination based on stereotypes. Employers and co-workers may have preconceived ideas of sexual orientation that make generalizations about an individual's qualifications, job performance, physical abilities, work habits, and productivity.

The laws prohibiting sexual orientation discrimination in the workplace protect all workers by providing work opportunities based on their abilities and not their perceived orientation.

2. Is sexual orientation discrimination a violation of federal employment laws?

Federal employment law offers protection for certain types of discrimination but not based on sexual orientation. Federal sexual orientation protection laws may only be limited to providing same-sex couples the right to marry and have the same benefits and protections as heterosexual couples have in marriage.

The Equality Act is a federal bill that has been proposed (but not passed), which would protect individuals based on sexual orientation, gender identity, and sex in employment, housing, public accommodation, and offer other protections. It is currently being referred to committee.7

California law provides much broader workplace protections for individuals based on their perceived sexual orientation.8 The FEHA applies to public and private employers with 5 or more employees. It also applies to labor organizations and employment agencies.

Anyone who has an employment discrimination or retaliation claim based on sexual orientation is limited to filing a claim with the California Department of Fair Employment and Housing (DFEH) instead of the Equal Employment Opportunity Commission (EEOC).

3. How do I know if I was discriminated against because of my sexual orientation?

It is illegal for an employer to do any of the following based on your sexual orientation in California:

  • Refuse to hire you
  • Refuse to select you for a training program
  • Demote you
  • Fire you
  • Pay you less
  • Reduce your salary
  • Deny equal pay
  • Deny a promotion
  • Deny reinstatement
  • Force you to quit
  • Harass you
  • Refuse family care leave, if eligible
  • Deny your benefits
  • Discriminate against you in any way

Some forms of discrimination based on sexual orientation may be obvious. However, sexual orientation discrimination often takes place behind closed doors. Employers often understand that discrimination based on sexual orientation is against the law and are careful not to say anything discriminatory in front of any witnesses or put any discriminatory language in writing.

There are a number of signs that an employee may be discriminated against because of his or her sexual orientation. Examples may include:

  • Making jokes about an employee's sexual orientation
  • Making jokes about what the employee does in his or her private sex life
  • Accusing an employee of being a lesbian because they refuse the co-worker's advancements
  • Limiting advancements for employees believed to be gay
  • Managers suggesting an employee use their sexual orientation to gain favor with certain clients
  • Allowing a hostile work environment against gay employees
  • Sharing offensive comics or memes
  • Quid pro quo sexual harassment
  • Making perceived gay and straight workers take on different duties
  • Sudden negative changes in job performance reviews
  • Retaliating against an employee for reporting discrimination
  • Forcing homosexual employees to quit
  • Allowing sexual harassment in the workplace
  • Supervisors not taking reports of discrimination seriously
  • Firing an employee who expresses a change in gender identity

4. Should I file a sexual orientation discrimination complaint with the DFEH?

Sexual orientation discrimination is a violation of California state law. The California Department of Fair Employment and Housing (DFEH) generally handles complaints of sexual orientation in the workplace in California.

In general, employment discrimination claims require exhausting state-level administrative avenues before the employee can file a civil lawsuit against the employer. This may mean the employee has to go through the DFEH complaint process before they can sue their employer. However, your attorney may file a complaint with the DFEH and obtain an immediate right to sue notice without waiting for the administrative process first.

You can file a sexual orientation discrimination complaint directly with the DFEH. This involves submitting a pre-complaint inquiry within one year of the last incident of discrimination, harassment, or retaliation. The complaint can be filed online, by phone, or using the form from the DFEH website. The pre-complaint inquiry will initiate an intake interview with the DFEH and help determine whether a complaint can be accepted for investigation.

An investigator will contact the individual who filed the complaint within 60 days and discuss the details of the inquiry. If the DFEH representative determines a complaint will not be pursued, the matter will be dismissed and the individual has the immediate right to sue their employer in court. If the representative accepts the pre-complaint inquiry, a complaint will be prepared for your signature and delivered to the employer.

After the employer responds to the complaint, the DFEH will review the answer. In most cases, the DFEH will offer the parties the opportunity to settle their dispute. These alternative dispute resolution methods provide a way for the employee and employer to negotiate a resolution to the complaint. If the complaint cannot be resolved through negotiations, the DFEH will initiate an investigation.

A sexual orientation discrimination investigation will determine whether there was a violation of California law. If the investigation finds there was a violation, the case will go the DFEH Legal Division. If there is no violation, the case will be closed. After the case is closed, the employee has the immediate right to take their case to court.

The DFEH Legal Division generally requires the parties to go through mediation. Mediation is a type of alternative dispute resolution where a neutral mediator helps the parties come together to find a mutually agreeable solution. A benefit of mediation is that it allows the employer and employee to come up with their own way to settle the dispute, without leaving it all up to a judge to decide the outcome.

If the parties cannot settle the dispute through mediation, the DFEH could file a lawsuit on behalf of the employee against the employer. If the DFEH does not pursue the claim, it will close the investigation and the employee has the immediate right to file a lawsuit against the employer.

5. Can I sue my employer for sexual orientation discrimination in California?

Employees who are discriminated against because of their sexual orientation can file a lawsuit against their employers for discrimination. An employee generally has to file a complaint with the DFEH before they can file a lawsuit in civil court.9

You are first required to obtain a “right to sue” notice before your case can be taken to court. You can request an immediate right to sue notice, without having to go through a complete DFEH investigation. However, if you receive a Right-to-Sue notice, your complaint will not be investigated by DFEH. Alternatively, you may also wait until the DFEH dismisses your case or finds no violation before taking your case to court.

According to the DFEH, proceeding directly to court without an investigation by the DFEH is only advisable if you have an attorney. Your attorney can obtain a right to sue notice and file your case in California Superior Court, in the county where the discrimination occurred, or another relevant county.10

The complaint will be served upon your employer and anyone else named in the lawsuit. The defendants will respond to the complaint with a formal answer responding to the allegations, and the case may proceed through litigation. At any point before the end of a trial, the employer and employee can negotiate a settlement and settle the case out of court.

6. What are my damages in an employment discrimination lawsuit in California?

The damages available in an employment discrimination lawsuit will depend on the type of discrimination involved and the extent of the harm. This may include money damages, punitive damages, and equitable remedies.

Damages from employment discrimination may include losses from:

  • Back pay
  • Front pay
  • Benefits
  • Pension benefits
  • Bonus payments
  • Higher income from a promotion
  • Higher income from a raise
  • Pain and suffering
  • Emotional distress

Employees who have suffered discrimination based on sexual orientation may also be able to seek attorney's fees and costs.18

An employee may also eligible to receive punitive damages. Punitive damages act as a way to punish the behavior of the wrongdoer and can deter the employer or other employers from engaging in similar wrongful behavior in the future.

Another remedy in employment discrimination cases is reinstatement. If an employee has been fired based on their sexual orientation, the court can require the employer to rehire the employee. However, the employee may not always want this remedy that requires them to return to the discriminatory workplace.

7. Can my boss fire me for reporting sexual orientation discrimination?

California workers cannot be retaliated against for exercising their labor rights, including reporting workplace discrimination based on sexual orientation.19

The FEHA protects employees who are retaliated against for:

  • Opposing workplace harassment
  • Opposing sexual orientation discrimination against other employees
  • Reporting sexual orientation harassment or discrimination
  • Assisting with DFEH investigations or government inquiries
  • Filing a harassment or sexual orientation discrimination claim

An employer cannot take retaliatory action, including termination, against an employee for citing discrimination or harassment violations or filing a sexual orientation discrimination lawsuit.20

Firing an employee for filing a harassment or discrimination claim is considered "wrongful termination". If an employer retaliates against an employee for reporting FEHA violations, the employee may be able to file a complaint with the DFEH or file a lawsuit against the employer for retaliation or wrongful termination.

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For questions about California sexual orientation discrimination laws, retaliation, or to discuss your case confidentially with one of our skilled California employment law attorneys, do not hesitate to contact us at Shouse Law Group.

We have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.


Legal References:

  1. Fair Employment and Housing Act 12940 -- Unlawful Practices. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”)
  2. Same.
  3. Fair Employment and Housing Act 12926 -- Definitions. (“(r)(2) “Sex” also includes, but is not limited to, a person's gender. “Gender” means sex, and includes a person's gender identity and gender expression. “Gender expression” means a person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth.”)
  4. Fair Employment and Housing Act 12940 -- Unlawful Practices. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (b) For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organization's staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.”)
  5. Fair Employment and Housing Act 12940 -- Unlawful Practices. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (c) For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.”)
  6. Fair Employment and Housing Act 12940 -- Unlawful Practices. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (d) For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, where the law compels or provides for that action.”)
  7. Equality Act of 2017, H.R.2282, 115th Cong. (2017-2018)
  8. Fair Employment and Housing Act 12940, endnote 1 above.
  9. Fair Employment and Housing Act 12965 -- Unlawful Practices. (“(b) If a civil action is not brought by the department within 150 days after the filing of a complaint, or if the department earlier determines that no civil action will be brought, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on his or her request, the right-to-sue notice.”)
  10. Fair Employment and Housing Act 12965 -- Unlawful Practices. (“(b) ... The superior courts of the State of California shall have jurisdiction of those actions, and the aggrieved person may file in these courts. An action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendant's residence or principal office.”)
  11. Fair Employment and Housing Act 12965 -- Unlawful Practices. (“(b) ... In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's fees and costs, including expert witness fees.”)
  12. Government Code 12940 GC -- Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions FEHA wrongful termination / retaliation. ("It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: . . . (h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.")
  13. California Code of Regulations (CCR) tit. 2, § 11021. ("a) FEHA Retaliation Generally. It is unlawful for an employer or other covered entity to demote, suspend, reduce, fail to hire or consider for hire, fail to give equal consideration in making employment decisions, fail to treat impartially in the context of any recommendations for subsequent employment that the employer or other covered entity may make, adversely affect working conditions or otherwise deny any employment benefit to an individual because that individual has opposed practices prohibited by the Act or has filed a complaint, testified, assisted or participated in any manner in an investigation, proceeding, or hearing conducted by the Council or Department or its staff. (1) Opposition to practices prohibited by the Act includes, but is not limited to: (A) Seeking the advice of the Department or Council, whether or not a complaint is filed, and if a complaint is filed, whether or not the complaint is ultimately sustained; (B) Assisting or advising any person in seeking the advice of the Department or Council, whether or not a complaint is filed, and if a complaint is filed, whether or not the complaint is ultimately sustained; (C) Opposing employment practices that an individual reasonably believes to exist and believes to be a violation of the Act; (D) Participating in an activity that is perceived by the employer or other covered entity as opposition to discrimination, whether or not so intended by the individual expressing the opposition; or (E) Contacting, communicating with or participating in the proceeding of a local human rights or civil rights agency regarding employment discrimination on a basis enumerated in the Act.")
  14. California Labor Code 1102.5 (“(b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties.”)

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