California’s Fair Employment and Housing Act (Gov. Code §12940 et seq.), also known as “FEHA,” makes it illegal for an employer to fire, fail to hire, or discriminate in any way against you because of your sexual orientation.
FEHA also prohibits sexual-orientation-based “harassment.” Harassment is a form of discrimination that occurs when a boss, supervisor, or co-worker subjects you to hostile, offensive or intimidating behavior because of your sexual orientation. To be illegal, the behavior must be so “severe or pervasive” that it interferes with your ability to perform your job. For example, one homophobic slur or joke might be rude and unfair, but might not be enough to be harassment. On the other hand, if you are subjected to such comments on a regular basis, the conduct may be pervasive enough to constitute harassment. Likewise, if one of your co-workers attacks you based on your sexual orientation it will be considered harassment because it is so severe, even if it only happens once.2. Do any other laws protect me from sexual orientation discrimination at work?
Many local areas in California also have passed laws that prohibit sexual orientation discrimination in employment. Usually, these ordinances cover only employees who work within the locality. Some of the localities that have adopted such laws have agencies that investigate complaints of gender identity discrimination. For example, in San Francisco, the Human Rights Commission can investigate your complaint of discrimination and mediate a settlement between you and your employer. Other localities may have similar commissions, civil rights offices or equal employment officers who may assist you with a complaint under the local ordinance — check with your City or County Clerk.
These local laws are of limited value to employees because California law bars you from actually bringing a lawsuit under local law. Therefore, if mediation does not result in a satisfactory resolution, the human rights commission or similar agency can’t do anything more to enforce the law. Instead, you must pursue your complaint with the appropriate state or federal agency (see below).
Currently, no federal law protects all workers in the United States from sexual orientation discrimination in the workplace. However, Executive Order 13087 (issued by President Clinton on May 28, 1998) prohibits sexual orientation discrimination against civilian employees working in the Executive Branch. Executive Branch employees must pursue any complaints made under the Order through their Equal Employment Opportunity Counselor.3. Which employees are covered by sexual orientation anti-discrimination laws?
FEHA defines sexual orientation as “homosexual, bisexual or heterosexual.” The law prohibits discrimination based on “actual or perceived” sexual orientation, which means that you are protected from sexual-orientation-based harassment or discrimination even if your employer is mistaken about your sexual orientation.4. Do anti-discrimination laws apply to all employers?
FEHA applies to employers who have 5 or more employees (except in cases of harassment, in which case there is no minimum employer size). The law also applies to employment agencies, labor unions, state licensing boards and state and local governments. However, FEHA provides no protection for federal employees.
Local laws also may have employer-size restrictions. For example, the San Francisco law applies only to workplaces where there are 6 or more employees. Be sure to check what restrictions apply to local laws where you work prohibiting sexual orientation discrimination.5. What if my co-workers discriminate against or harass me?
The state and most local anti-discrimination laws protect individuals from acts of discrimination committed by the employer or the employer’s “agents,” which includes other employees. Therefore, discrimination or harassment by your supervisor or co-workers is prohibited under these laws.6. What about discrimination based on gender identity?
FEHA also makes it illegal for your employer to discriminate against you or harass you because you are or are perceived to be transgender or gender non-conforming. For more information, see our Fact Sheet Gender Identity Discrimination: Employment Rights for Transgender Workers.7. What should I do if I am being discriminated against or harassed?
If you are not able to resolve your situation informally, you can:
Under state law, it is illegal for a person or company to retaliate against someone who complains about discrimination or harassment in the workplace. Retaliation may include actions such as terminating you, moving you to less favorable assignments or shifts, making undeserved negative evaluations, or intensifying the original harassment. If anyone (including a co-worker or supervisor) retaliates against you for complaining about unlawful discrimination at your workplace, you can file a retaliation complaint with the DFEH. That complaint is separate from the original sexual orientation complaint, if any, you made with the DFEH or EEOC.