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Colleagues of a young gay South Carolina worker constantly harassed him with name-calling and abuse. He complained to his supervisor -- and was fired.
This worker lived in one of more than 30 states that do not recognize sexual orientation as a protected class in employment. He was also not protected at the county or city level. No federal law explicitly mentions sexual orientation discrimination either. So from a legal standpoint, his termination was legitimate.
The worker contacted Lambda Legal, a national organization working for the civil rights of lesbians, gays, bisexuals and transgender people. Lambda filed a lawsuit, alleging breach of contract, because the employer included sexual orientation in its antidiscrimination policy. The company agreed to a cash settlement -- and instituted sexual orientation harassment training.
The states that outlaw employment discrimination based on sexual orientation and counties and municipalities with similar statutes include almost half the US population, says Sean Cahill, director of the National Gay and Lesbian Task Force Policy Institute. Yet according to a Harris Interactive poll cited by Lambda Legal, 23 percent of gay employees have been harassed at work, 12 percent have been denied promotions, and 9 percent were fired because of sexual orientation or gender identity.
What to Do After You're Fired
Terminated employees can fight back, Cahill says. Strategies vary according to whether they are covered by a state or local ordinance, but the first step is the same: Consult a local legal aid group, preferably one specializing in gay issues. Lambda Legal supports four regional offices. The American Civil Liberties Union Gay and Lesbian Rights Project is another important resource.
Lambda advises anyone who believes he has been fired because of sexual orientation to avoid making accusations or threats you'll later regret. Instead, request the reason for termination in writing. If you're asked to sign paperwork, consider consulting an attorney first. Severance agreements may include waivers of claims against employers. Signing such documents may leave you with no options later.
Fighting termination takes time and money. Consider asking for a letter of reference as soon as you're terminated to help you find a new job. Lambda also suggests asking your supervisor -- or negotiating with him -- about information the company will share with prospective employers.
Also inquire about continuing health coverage under COBRA or other laws. If your partner or partner's children were covered under your policy, find out their status. Most plans permit coverage to continue for dependents.
If you worked for a large company, you can complain to HR, particularly the equal employment opportunity officer or ombudsman. A letter of complaint should document your experience. Do not threaten a lawsuit.
Geography and Type of Employer Determine Strategy
If you live where sexual orientation is a protected class, contact the state or local agency that handles discrimination claims. Lambda suggests being able to answer the following questions:
- What makes you believe you were fired because of sexual orientation or gender identity?
- Has your company fired any other gay employees?
- How are gay employees treated generally?
- Does your company include sexual orientation in its nondiscrimination policy?
- What is your overall performance record at the company?
- How do people at work know your sexual orientation? Employers often claim they cannot be guilty of discrimination, because they were unaware an employee was gay.
- Did you file a complaint with your supervisor or human resources representative before termination?
Employees located in jurisdictions where sexual orientation is not protected have a tougher time legally. However, Title VII of the Civil Rights Act of 1964 protects employees from sexual harassment. Several court decisions have held that gay workers are protected from sexual harassment involving gender-based stereotypes. Other lawsuits have been filed -- and won -- based on equal protection clauses.
There are also differences based on types of employment. Besides the states barring sexual orientation discrimination, several others protect public gay, lesbian and bisexual employees only. And while many religiously affiliated employers are exempt from gay and lesbian antidiscrimination laws, courts have held some publicly funded religious organizations to a higher standard.
The good news? While the overall number of discrimination suits filed has skyrocketed since the '90s, those based on sexual orientation discrimination has remained stable, Cahill says.
