Shortly after the nationwide legalization of marriage equality, many activists pointed out that you could still be fired in 28 states simply for being LGBTQ. While it’s true that many states lack employment non-discrimination laws explicitly covering sexual orientation or gender identity, Justin Robinette, a Pennsylvania-based lawyer who practices discrimination law, argues that all LGBTQ people are still protected under pre-existing sex discrimination laws.
In fact, Robinette says, misconceptions about LGBTQ workplace discrimination can actually hurt a person’s chances of successful litigation. Here he shares advice that LGBTQ individuals should take if they find themselves subject to such discrimination.
1. You are still protected in states without explicit LGBTQ employment non-discrimination laws.
Sometimes when a person suspects they’re the victim of anti-LGBTQ discrimination, they’ll talk to well-meaning LGBTQ organizations or politicians who inform them, “Without a local ordinance, state law or federal law, LBGTQ individuals can be fired, evicted or denied access to public places and opportunity.” But Robinette says that’s completely false.
“In a state like Pennsylvania, which doesn’t have an LGBT-inclusive state law, you get questions of ‘Am I protected? Am I not protected?'” Robinette says. “My answer is you’re always protected. That’s the position of a true advocate.”
“All gay bias is sex bias. All trans bias is sex bias,” he adds, pointing out that whenever a person faces anti-LGBTQ discrimination, it boils down to whether they’d be treated similarly if they (or their partner) was a member of the opposite sex.
Discrimination for not acting how a male or female is “supposed to” act is sex discrimination, pure and simple, and you’re protected under existing law, says Robinette. And if your case would fare better in a state with explicit LGBTQ workplace protections, Robinette says, then that’s further proof that you’ve been discriminated against purely for behavior related to your gender.
2. Here are your first steps if you’re a victim of anti-LGBTQ discrimination.
Foremost, Robinette says, “Figure out if your company has a sexual orientation, gender identity policy. You’d be surprised how many times they don’t.”
After this, he suggests following whatever protocol your workplace has to file an official discrimination claim. Often the process requires specific documentation and submission processes as well as a way to move your complaint up the ladder whether people respond or not.
“You’ve gotta do the first step, which is go to your HR department. Go to the exact person your handbook says to go to. If there’s someone above that, you follow the chain of command. Whatever the path is, you have to follow it to the ‘T’ because that’s a defense that can be used against you,” Robinette says.
If you don’t follow the official process, employers can say, We did everything to prevent and correct the conduct, and the employee unreasonably failed to take advantage of the opportunities provided by the employer.
Typically, Robinette adds, employees have 180 days to file a claim with a county, city or state civil rights agency. Under federal law, the statute of limitations is slightly longer, at 300 days, to file with the Equal Employment Opportunity Commission (EEOC). It’s important to file an administrative charge of discrimination within either timeframe or else the statute of limitations can run out.
If you’re unsure about where to file a claim, Robinette suggests contacting the EEOC, your state Human Relations Commission, or a local Human Relations Commission serving your town.
Robinette also suggests filing official complains everywhere, in an abundance of caution, but admits that the web of agencies and their submission and follow-up guidelines can quickly turn into a confusing maze of red tape. At that point, he suggests getting legal help.
“Once you start to locate these resources and understand more, a lawyer can help you navigate the Kafka-esque nightmare,” he says.
3. Don’t believe other workplace discrimination myths.
Some people say that it’s nearly impossible to prove workplace discrimination over sexual orientation or gender expression because very few supervisors will explicitly admit such bias.
“The law assumes employers are not going to be overt with their motive,” Robinette says. “We assume the employer’s going to be sophisticated and come up with a legitimate reason. But the law of employment discrimination is about testing the legitimacy of the reason.”
For example, if an employer says they’ve fired you or changed your job because of repeated tardiness or poor work performance, a court will look at whether they handled other employees the same way. And the same applies to any other sort of anti-LGBTQ discrimination, whether in housing, schools, public accommodations or any other field.
Documentation of your employer’s words and actions is important, Robinette adds, especially any emails, records or anything that shows their words about your workplace behavior or discipline.
“I tell people, ‘Write your manager back in an email. Keep it short. One or two lines.’ It’s less important what you say. We want to document what they’re saying. So that documentation’s important.”
Some people keep a personal workplace diary recording times and details of events. While that’s sometimes helpful, Robinette says what’s more important is what the employer says.
Also, some people think they can’t file a discrimination claim in an “at-will” state where employers are allowed to fire you for any reason without “just cause” or forewarning. But, Robinette says, even in these states, employees are always covered by state and federal statutes forbidding sex-based workplace discrimination.
“Your employer still has to abide by laws prohibiting discrimination based on race, color, religion, sex, national origin, age, disability and other protected classes.” Robinette says. “Describe to me what happened, and from there we’ll investigate the case.”
For more information about LGBTQ workplace discrimination, contact Justin Robinette.
Featured image by dusanpetkovic via iStock