If you’ve been reading or watching the news in recent months, you have surely seen a large amount of press on various states and municipalities introducing laws to restrict certain rights of those in the LGTBQ+ community. According to a CCN article a few weeks ago, American Civil Liberties Union data reveals that state legislatures across the country have introduced a combined 417 anti-LGBTQ bills in roughly the first quarter of 2023 – a new record and twice the number of such bills introduced in all of last year. (https://www.cnn.com/2023/06/06/us/hrc-lgbtq-emergency-declared/index.html)
In fact on June 6, 2023, the Human Rights Campaign declared a national state of emergency for members of the LGBTQ+ community. The Campaign’s President, Kelley Robinson said that “LGBTQ+ Americans are living in a state of emergency. The multiplying threats facing millions in our community are not just perceived – they are real, tangible and dangerous.” She pointed out that “In many cases they are resulting in violence against LGBTQ+ people, forcing families to uproot their lives and flee their homes in search of safer states, and triggering a tidal wave of increased homophobia and transphobia that puts the safety of each and every one of us at risk.”( https://www.hrc.org/campaigns/national-state-of-emergency-for-lgbtq-americans)
This author finds the attack on the basic human rights, and dignity, of LGTBQ+ individuals offensive and unconscionable. However, regardless of whether or not you agree, if you live in California it is important for you to know that LGTBQ+ individuals have certain rights and protections, including in the workplace. It is important during PRIDE month – and every month – to remember this and ensure that as employers and employees, we ALL respect the rights of our LGTBQ+ employees and comply with the law.
The California Fair Employment and Housing Act (“FEHA”), which applies to public and private employers, labor organizations, and employment agencies, protects employees against harassment, discrimination, and retaliation in the workplace. FEHA provides that it is illegal for employers with five or more employees to discriminate against job applicants and employees because of their protected class, or retaliate against them because they have asserted their rights under the law. Among the many protected classes recognized under FEHA are an individual’s sexual orientation, gender identity, and gender expression.
FEHA also prohibits harassment based on a protected class (including sexual orientation, gender identity, and gender expression) against an employee, an applicant, an unpaid intern, a volunteer, or a contractor. Harassment is prohibited in all workplaces, even those with fewer than five employees.
FEHA further requires that employers take reasonable steps to prevent and correct wrongful (harassing, discriminatory, retaliatory) behavior in the workplace. Such steps include things like having effective policies in place, and conducting mandatory harassment-prevention training for both supervisors and non-supervisors pursuant to the requirements outlined in the applicable regulations.
Finally, while only employers are liable for unlawful discrimination and retaliation that occurs in the workplace, individual harassers can be held personally liable if a judge or jury determines that they engaged in unlawful harassment against another in the workplace.
Takeaway: To avoid liability under FEHA, employers and employees alike must comply with the law and not discriminate, harass, or retaliate against others in the workplace. To be a good human, employers and employees alike should respect and celebrate the individual, cultural, and social differences of others in the workplace and be kind, inclusive, and professional.