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Can You Be Fired for Your Sexual Orientation?

Posted on in Employment

job discrimination, San Jose sexual orientation discrimination lawyer, discrimination claim, gender stereotyping, employment discriminationCalifornia's Fair Employment and Housing Act (FEHA) protects workers from job discrimination based on their sexual orientation, gender identity, or gender expression. This means that even in cases where an LGBTQ employee is allegedly fired for nondiscriminatory reasons, if there is evidence that a “discriminatory motive” influenced the termination, the employer may still be liable for damages.

Discriminatory motives are not always obvious. For instance, an employer is unlikely to come out and say, “We're firing you because you are gay.” In many cases, the discrimination takes the form of gender stereotyping—i.e., disfavoring an employee who acts “too gay” or does not conform to certain behavioral expectations. While this can be more difficult to prove in court, it is nonetheless a valid basis for a discrimination claim.

“Gender Stereotyping” May Support Discrimination Claim

Recently, a state appeals court in Los Angeles reinstated a FEHA-based employment discrimination lawsuit brought by a former executive at a well-known automotive financial services company. The plaintiff was actually promoted to be the company's “manager for diversity and inclusion,” reporting directly to the vice president for human resources (the VP). Although the plaintiff received positive employment reviews during his tenure, according to court records, the VP also “believed his internal performance could be improved” and she encouraged him to “develop stronger relationships with executive leaders.”

After his promotion, another vice president at the company expressed concerns about the plaintiff's “frequent absences from the office and lax management of his team.” Several employees also complained about “inappropriate comments” made by the plaintiff. Management subsequently issued a “written warning.” According to management, the plaintiff's continued “insubordination and lack of progress on assigned tasks” following this warning led to his termination.

However, the plaintiff said he was fired due to anti-gay bias. Specifically, he alleged that a senior vice president involved in the decision to fire him “harbored stereotypical views of gay men and articulated clear opinions as to what he considered appropriate gender identity expression.” For example, the plaintiff said this executive told him how he “should cut his hair, as well as ridiculing him for wearing a scarf as an accessory when it was not cold outside.” In short, this executive viewed the employee as “too gay” and “incompatible” with the employer's “corporate culture.”

The plaintiff also cited statements made by another executive who directly informed him of his termination. This executive said the plaintiff's work “excluded the majority” of employees, which the plaintiff interpreted to mean that “he had focused too much on LGBT issues.”

Although a trial judge found this evidence insufficient to support the plaintiff's FEHA claims, the California Second District Court of Appeal said it was enough to create a “triable issue of fact” as to whether “gender stereotyping” played a role in the plaintiff's termination.

Are You the Victim of Sexual Orientation Discrimination?

Everyone has the right to work in an environment free of hostile or discriminatory conduct. If you have been mistreated at work—or even fired—due to your purported failure to comport with management's outdated and illegal stereotypes, you need to speak with a qualified San Jose sexual orientation discrimination lawyer who can help you consider your legal options. Contact Jachimowicz Law Group at 408-246-5500 today to schedule a free consultation with one of our northern California employment attorneys.








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