Under the California Fair Employment and Housing Act (“FEHA”), it is unlawful for an employer to refuse to hire, to discharge or to terminate, to refuse to select or to bar or discharge an employee from a training program leading to employment; or to discriminate against the person in compensation or in terms, conditions, or privileges of employment because of the employee's sexual orientation. Cal. Gov. Code § 12940(a).
Sexual orientation is defined as "heterosexuality, homosexuality, and bisexuality." Cal. Gov. Code §12926(q). An employer cannot terminate an employee purely for being heterosexual, homosexual, or bisexual. An employer also cannot demonstrate any favoritism towards employees with differing sexual preferences purely based on an employee’s perceived sexual orientation.
In many cases, the mere appearance of an employee’s sexual orientation leads to discrimination in the workplace. For example, an employee may be a heterosexual, but be discriminated against for appearing to be homosexual, which would be prohibited by the FEHA.
Employee Needs To Prove
- The employee was a member of the sexual orientation (example: homosexual).
- The employee was "subjected to an adverse employment decision" (example: the employee was terminated).
- The employee was “qualified for the position.”
- The employee was “replaced by a person outside the [particular sexual orientation], or similarly situated non-protected employees were treated more favorably.” See Vincent v. Brewer Co., 514 F. 3d 489, 494 (6th Cir. 2007).
Employees should be aware that the use of derogatory labels for homosexuals, name-calling, and mocking may be sufficient evidence to show workplace discrimination. Leibert v. Transworld Systems, Inc., 32 Cal. App. 4th 1693 (1995) (plaintiff stated viable facts for wrongful discharge).
Employers are also not allowed to discriminate against an employee based on the employee's defiance of gender stereotypes. For example, an employer may not discriminate against a female because she does not “act like a woman.” Price Waterhouse v. Hopkins, 490 US 228, 251 (1989).
Contact Sani Law Today
If you believe your employer has treated you adversely, including wrongfully terminated you, discriminated against you, retaliated against you, or harassed you, you should Contact Sani Law today to schedule a free initial consultation.
