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Sexual Orientation Discrimination in the Workplace: What Is the Updated Guidance in New York in 2023?

Sexual Orientation Discrimination in the Workplace: What Is the Updated Guidance in New York in 2023?

What Is the Definition of Sexual Discrimination in the Workplace?

Sex discrimination is the disparate treatment of men and women. Men and women are entitled to equal treatment in gaining employment, beneficial terms of employment including wages and benefits for similar work, and privileges and conditions relating to employment.

Title VII of the Civil Rights Act of 1964 makes sex-based discrimination the subject of private lawsuits by employees against their employers. The Supreme Court has held that a claim of “hostile environment” or “hostile work environment” sex discrimination is actionable under Title VII, and not such unfair treatment or sex-based termination cases.

The Equal Employment Opportunity Commission helps enforce the Civil Rights Act, in addition to private employees going to court without the commission in appropriate cases. In 1980, the EEOC released Guidelines stating that “sexual harassment” is a form of illegal sex discrimination prohibited by Title VII. Such “administrative interpretations” may be subject to recognition in the courts. For example, the Supreme Court has concluded that sexual harassment which creates a hostile or offensive environment for women (or men) harms equality in the workplace, and that a day at work should not be a demeaning and disconcerting experience.

In New York, the Division of Human Rights is part of the state government that promotes equal rights. New York was the first state in the nation to pass a Human Rights Law geared to equality in earning a living and going about one’s daily life. The New York State Division of Human Rights helps to enforce this important law.

The Human Rights Law also protects individuals from unlawful discrimination based on “age, creed, race, color, sex, national origin, marital status, domestic violence victim status (in employment only), pregnancy-related condition, military status, favorably resolved arrest record, conviction record, sexual orientation, gender identity or expression, predisposing genetic characteristics, familial status, and lawful source of income (in housing only).”

While the New York Human Rights Law refers directly to sexual orientation as a subject of prohibited discrimination, the Civil Rights Act did not. Still, the Supreme Court concluded in 2020 that Title VII prohibits unequal treatment or harassment on sexual orientation grounds. Sexual orientation discrimination (as well as gender identity discrimination) treats people differently based on conduct that would not be singled out had their sex at birth been otherwise.

The term sexual orientation is defined in the Human Rights Law as “heterosexuality, homosexuality, bisexuality, or asexuality, whether actual or perceived.”

At the federal and state levels, there are evolving guidelines for the prevention of discrimination and harassment. At the federal level, the EEOC guidance memos and manuals try to “educate employees, applicants, and employers about the rights of all employees, including lesbian, gay, bisexual and transgender workers, to be free from sexual orientation and gender identity discrimination in employment.” Similarly, the Office for Civil Rights at U.S. Department of Health and Human Services, responsible for the hospitals and certain care homes, there are guidance documents relating to how “everyone – including LGBTQ people – should be able to access health care, free from discrimination or interference, period.” In 2019, the Human Rights Law was amended as a result of the Gender Expression Non-Discrimination Act (GENDA) to regulate hiring, firing, interview questions, access to rest rooms and changing rooms, and uniform or appearance standards that may discriminate on the basis of gender identity or expression, which is prohibited in all areas covered by the Human Rights Law. The Department of Financial Services also has guidance on discrimination in banking or insurance services.

Sexual Orientation Discrimination in the Workplace Statistics

About half of all LGBTQ+ workers tell surveys that they have experienced unfair during at least one phase of their careers due to their sexual orientation or gender identity. About one in five LGBTQ workers say that they have been physically attacked at work. A somewhat higher proportion has been sexually harassed and/or touched inappropriately.

Openly LGBTQ+ persons are not promoted to higher positions at the same rate as other employees. They are between 25% less and 90% less likely to be promoted to or hired as corporate executive leaders. They are about 50% less likely to be nominated to the U.S. Senate and elected as U.S. Senators. They are almost 40% less likely to serve in the House of Representatives in 2023.

In 2022, New York’s Division on Human Rights received 4865 complaints of discrimination, of which 334 involved sexual orientation discrimination. There are often multiple bases for a complaint, like gender expression and sexual orientation, race and sexual orientation, etc.

Going back 5 years to 2017, there were 6128 complaints received. About 256 of them involved sexual orientation.

New York law also protects against sexual orientation discrimination in education, stores, restaurants, and housing. Most cases at the Division involve employment, however.

Remedies for Sexual Orientation or Gender Identity Discrimination

A worker may win of compensatory and punitive damages for employment discrimination or harassment at work. There are limits on damages at the federal level, such as for firms or government agencies with 15-100 employees, $50,000, for those with 101-200 employees, $100,000, and for those with 201-500 employees, $200,000.

New York state law has fewer caps, because punitive damages are available in certain cases. New York City anti-discrimination law also provides punitive damages in some cases. In 2018 the Human Rights Law provision about when lawsuits may be brought were clarified to extend to nonemployees, such as independent contractors, consultants, vendors, subcontractors, and persons providing services pursuant to a contract but without a job.

Compensatory damages may involve back pay, front pay, emotional distress or mental anguish, certain out of pocket costs, damages related to fringe benefits, and certain attorney’s fees and costs. The amount of damages for emotional distress may vary based on a diagnosis for conditions like depression or post-traumatic stress, and impact on sleep, relationships, etc.

Harassment on the basis for sexual orientation or gender identity, as discussed above, may also be subject to these remedies. Retaliation for complaining about discrimination or harassment is also prohibited and subject to legal remedies.

It is important to know your rights when it comes to employment discrimination. A free consultation can help you understand your rights and take action to protect them, including by contacting human resources or the government.

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