Sexual Orientation and Gender Identity (SOGI) Employment Discrimination
What is Sexual Orientation and Gender Identity (SOGI) Employment Discrimination?
The right of employees to be free from discrimination based on sexual orientation or gender identity (SOGI) is protected under the law, including the following enforced by the Equal Opportunity Employment Commission (EEOC):
- Title VII of the Civil Rights Act of 1964 (Title VII)
- In Bostock v. Clayton County, Georgia, No. 17-1618 (S. Ct. June 15, 2020), the Supreme Court held that firing individuals because of their sexual orientation or transgender status violates Title VII's prohibition on discrimination because of sex.
- The Court reached its holding by focusing on the plain text of Title VII.
- The Court explained, “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”
The law against discrimination based on sex includes all aspects of employment. This includes hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment.
- It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on sex or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII, ADEA, ADA, or the Equal Pay Act.
It is unlawful to subject an employee to workplace harassment that creates a hostile work environment based on sexual orientation or gender identity. Harassment can include, for example, offensive or derogatory remarks about sexual orientation (e.g., being gay or straight). Harassment can also include, for example, offensive or derogatory remarks about a person's transgender status or gender transition.
Although accidental misuse of a transgender employee’s preferred name and pronouns does not violate Title VII, intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.
While the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that aren't very serious, harassment is unlawful when it is so frequent or severe that it creates a hostile work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
SOGI in Title VII
What is employment discrimination based on Sexual Orientation and Gender Identity (SOGI) in Title VII of the Civil Rights Act of 1964 (Title VII)?
- Discrimination against an individual because of gender identity, including transgender status, or because of sexual orientation is discrimination because of sex in violation of Title VII of the Civil Rights Act of 1964 (Title VII).
- As a general matter, an employer covered by Title VII is not allowed to fire, refuse to hire, or take assignments away from someone (or discriminate in any other way) because customers or clients would prefer to work with people who have a different sexual orientation or gender identity. Employers also are not allowed to segregate employees based on actual or perceived customer preferences. (For example, it would be discriminatory to keep LGBTQ+ employees out of public-facing positions, or to direct these employees toward certain stores or geographic areas.)
- Prohibiting a transgender person from dressing or presenting consistent with that person’s gender identity would constitute sex discrimination.
- Courts have long recognized that employers may have separate bathrooms, locker rooms, and showers for men and women, or may choose to have unisex or single-use bathrooms, locker rooms, and showers. The Commission has taken the position that employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity. In other words, if an employer has separate bathrooms, locker rooms, or showers for men and women, all men (including transgender men) should be allowed to use the men’s facilities and all women (including transgender women) should be allowed to use the women’s facilities.
Federal-Sector EEOC Cases Involving Sexual Orientation or Gender Identity (SOGI) Discrimination
Louisiana State Sexual Orientation and Gender Identity Discrimination
Employment nondiscrimination laws protect LGBTQ people from being unfairly fired, not hired, or discriminated against in the workplace by private employers.
Employment discrimination based on sexual orientation and gender identity in Louisiana is not explicit or comprehensive statewide. LA’s employment discrimination law does not include sexual orientation or gender identity. Some local governments and private employers in Louisiana have adopted non-discrimination protections for LGBT people, but coverage is incomplete.
The Supreme Court decision in Bostock v. Clayton County, Georgia, No. 17-1618 (S. Ct. June 15, 2020) explicitly extends Title VII sex-based employment discrimination protections based on sexual orientation and gender identity.
Under Louisiana Law, LA Rev Stat 23:332 prohibits intentional employment discrimination.
Retaliation claims for other types of discrimination complaints are not covered under the Louisiana Employment Discrimination Law. Under La. Rev. Stat. § 23:967 General Whistleblower Protection Law an employee may not be discharged (or discriminated against) in retaliation for performing, in good faith, the following activities:
- Disclosing (or threatening to disclose) a workplace act or practice that violates state law;
- Providing information or testimony in a public investigation, hearing, or inquiry into any violation of the law;
- Refusing to participate in (or objecting to) an illegal employment act;
- To be protected under this statute, the employee must first inform the employer of the violation. An employee is not protected if he goes directly to a governmental agency without first advising the employer. Also, an employee must be certain that the illegal conduct actually happened; a reasonable, good faith belief will not protect an employee if no violation actually occurred.
The general rule is that most employees may be fired at any time-for any reason or for no reason at all-under what is known as the at-will employment doctrine. However, there are exceptions to the general rule; the Louisiana whistleblower protection statute. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: health care employees, insurer employees, labor investigations & proceedings, and workers' compensation.
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.
How to File a Charge
To File A Charge
Laws like Title VII of the Civil Rights Act of 1964 (Title VII) require you to file a charge of discrimination with the Equal Opportunity Employment Commission (EEOC) before you can file a discrimination lawsuit against your employer. An individual alleging a violation of Title VII must file a charge with the EEOC before you can file a discrimination claim in federal court.
To File a Claim with the Equal Opportunity Employment Commission (EEOC):
Within 180 days of the alleged unlawful compensation practice (2 years under the EPA)
15 or more employees who have worked for the employer for at least twenty calendar weeks (in this year or last) (20 or more for age-related claims).
To File with the Louisiana Commission on Human Rights (LCHR):
Within 180 days of the alleged unlawful compensation practice
20 or more employees who have worked for the employer for at least twenty calendar weeks (in this year or last).
To File in a State Court under Louisiana State Law:
You may file a claim under state law without having first gone to either the LCHR or EEOC.
Generally, to preserve your claim under state law based on your state discrimination claims, you must file within 1-year or 360 days of the date you believe you were discriminated against.
If you file your discrimination claim with the LCHR or EEOC within 300 days of the discriminatory treatment, then you have an additional 6-month extension from the 1-year period to file your claim in Louisiana state court (meaning you have 18 total months).
A case filed in state court using federal law may be “removed” to federal court by the employer because it involves a federal statute such as Title VII, GINA, ADEA, and ADA or because the employer is based in another state.
To File a Discrimination Claim in Federal Court:
To preserve your claim under federal law, you must cross-file with the EEOC or LCHR within 300 days of the date you believe you were discriminated against.
A federal employment discrimination case cannot be filed in court without first going to the EEOC or LCHR, as discussed above, and having the EEOC or LCHR dismiss your claim.
This process is called “exhaustion” of your administrative remedy. The EEOC or LCHR must first issue the document known as “Dismissal and Notice of Rights” or “Notice of Right to Sue” (Form 161) before you can file a case based upon your federal claim.
A lawsuit based on your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice. Be sure to mark down that date when you receive the notice.