What to Do If You Experience Discrimination
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What to Do If You Experience Discrimination

What should I do if I believe I’ve been discriminated against at work for being LGBT or HIV positive?

Being discriminated against at work can be upsetting, so it’s important to talk to someone you trust about your experiences. Having a personal support system can also give you the clarity you’ll need to consider your next steps. These may include:

1. Seeking legal advice

2. Documenting the discrimination

3. Reporting the discrimination

4. Pursuing legal action

1. Seeking Legal Advice

First, call Lambda Legal’s Help Desk. While Lambda Legal is only able to represent a small number of the people who call and our Help Desk is not equipped to provide specific legal advice, our specialists can always share information and often can direct you to services and resources in your area, such as attorneys in our network. Many attorneys will write a letter or even take on a case on a contingency basis, taking a fee only as a proportion of any monetary settlement or award.

Some questions to keep in mind when interviewing prospective attorneys:

  • Does the attorney or firm have experience with employment cases involving sexual orientation, gender identity or HIV status?
  • Does the attorney have doubts about the rights of LGBT people and people with HIV?
  • Does the attorney know the kinds of arguments that are likely to be used against you in your situation or your case?

For additional insights, see Lambda Legal’s fact sheet “Some Suggested Questions to Ask a Prospective Attorney.”

2. Documenting the Discrimination

If you are being discriminated against at work (see “How do I know for sure whether I’ve been discriminated against by my employer?”), try to collect evidence about the discriminatory conduct and make a list of any witnesses. Evidence includes any emails, photographs or other physical evidence of how you have been treated.  It also means you need to take notes. If a co-worker or a supervisor sexually harasses, abuses or discriminates against you in any way, write down your experience in a journal or memo as soon as possible. It is much more persuasive if you can produce a detailed memo or journal entry than it is to attempt to recall an occasion of discrimination that occurred months ago.

If there is a legal claim, other people will be able to read what you wrote, so don’t say anything that is inaccurate or that you wouldn’t want others to read later. In your notes, include a chronology of events leading up to and following any problems you’ve had at work. List as many details as possible, including:

  • The date, time and location, the names of the people involved and a description of what took place
  • What was said, who said it, when and where it was said, and who was in the room or vicinity and may have heard it
  • Any differences in treatment (for example, if non-LGBT or HIV-negative employees were treated differently in a similar situation)
  • Any company procedures or policies that weren’t followed
  • Any witnesses
  • Any reasons the employer or supervisor gave for what happened, if there was such a statement
  • Timing (for example, if problems seemed to start after you came out to your boss or co-workers, or a change in supervision caused problems where there had been none before)
  • Copies or photographs of any offensive material or material that you believe may be important for other reasons
  • Documentation of any attempts you or others made to address the situation (often the best practice is to put such requests in writing and keep a copy)

You should keep this documentation at home, not in the workplace, and your records should also include a current copy of your employee manual or union contract and related emails, correspondence and other paperwork to the extent that company policies allow. Also, try to obtain a copy of your personnel file, including performance evaluations, if it can be done without causing problems. (In some states, you may be legally entitled to this material). Obtaining a copy of this file early in the process prevents a dishonest employer from backdating negative documents and simply placing them in your file.

Also, always hold on to any favorable personnel reviews and unofficial compliments (such as congratulatory emails). Documentation of good job performance can sometimes vanish from company records once trouble begins.

3. Reporting the Discrimination

Obtain and read your employer’s personnel policies, employee manual and/or your union contract to learn about any contractual rights you may have, as well as any complaint procedures. Does your employer or state have a nondiscrimination policy that includes sexual orientation, gender identity and health or HIV status?

Consider any grievance procedures available to you through your employer and/or your union. You can try explaining the problem to your supervisor or to a union or human resources representative. It is always best to do so in writing (and make a copy). In many cases, including instances of sexual harassment, you may be required to present your complaint first through your employer’s internal grievance process first before you can make a claim against your employer under federal, state or local law.

4. Pursuing Legal Action

If state or local laws apply to you (see “What laws protect me from anti-LGBT or anti-HIV discrimination?” for more about that), consider filing a complaint through your state or local civil rights enforcement agency; if you’re seriously thinking of taking such a step, contact an attorney for advice or representation and be aware of any deadlines for filing complaints. (For referrals, call Lambda Legal’s Help Desk. With an attorney’s assistance, you can also consider whether any other legal actions in state or federal court can help to protect your rights.

Regardless of whether you have secured the services of an attorney, you may want to contact a local office of the federal Equal Employment Opportunity Commission (EEOC) visit this page to find one or your state’s equivalent. Ideally, you would notify an agency like this reasonably close in time to the date of the discriminatory incident. The EEOC will investigate and may attempt to correct the problem short of litigation.

The EEOC will accept charges of discrimination against covered employers (those with 15 or more employees) from employees who are LGBT or living with HIV.  The EEOC will investigate and either will take further action on your behalf or issue a "right to sue" letter allowing you to sue your employer directly in federal court for violations of Title VII of the U.S. Civil Rights Act or the Americans with Disability Act (ADA).

Keep in mind that EEOC cases must be filed within 180 days of experiencing discrimination, although that period is extended to 300 calendar days if one is alleging sex, religion, or disability discrimination, and a state or local agency enforces a state or local law that prohibits employment discrimination on the same basis.  

How do I know for sure whether I’ve been discriminated against by my employer?

Consider these questions—and take notes.

  • If you feel you were treated differently because of your sexual orientation, gender identity or HIV status, what kind of evidence do you have?
  • Do you know how other LGBT or non-LGBT people or people with HIV were treated in similar situations?  Probably the most straightforward case is one where your employer has treated other LGBT or HIV-positive employees badly, which might be seen as a “pattern” of discrimination and therefore help your case.  However, even if your employer has treated other LGBT or HIV-positive employees well, you may still prevail if you only establish that you yourself were treated differently than a similarly situated co-worker because of your sex, sexual orientation, gender identity, or HIV status.  (See “The Laws That Protect You” for more about this).
  • How long have you worked for this employer? The longer you’ve been at a job, the more credibility you may have. If your early history with the employer has been free from harassment and discrimination, you should be prepared to explain the circumstances that caused the change, such as a change in your supervision.
  • How have your performance evaluations been? It helps if you have a good record.
  • How do people at work know about your sexual orientation, gender identity or HIV status? Employers often claim that they couldn’t be guilty of discrimination because they weren’t aware of an employee’s sexual orientation, gender identity or HIV status. However, even if your employer or supervisor doesn’t know your actual sexual orientation, gender identity or HIV status, you may have been discriminated unlawfully if you were treated unfairly because of what others believed to be your sexual orientation, gender identity or HIV status, whether or not they were correct.
What are the main kinds of employment discrimination experienced by people who are LGBT or HIV positive?

Employment discrimination can occur at many different points during the process of getting and keeping a job. Here are six of the main areas of concern for people who are LGBT or HIV positive, along with some basics about what you would need to know in order to protest discrimination.

1. Hiring and Promotion

2. A Hostile Environment

3. Wrongful Termination

4. Sexual Harassment

5. Targeting Gender Identity or Expression

6. Violations of Privacy

1. Hiring and Promotion

Ideally, all employers would hire or promote the person with the best qualifications for a job, without regard to personal characteristics unrelated to job performance. But this is not always the case. A classic discrimination situation involves one or more decision-makers saying derogatory or hostile things about LGBT people or people living with HIV, or employees noticing that coworkers who are not known to be LGBT or living with HIV are getting hired or promoted ahead of them—despite being less qualified.

It is easier to prove a claim of discrimination when someone has made explicit remarks or has demonstrated discriminatory attitudes (with posters or literature, for instance, which denigrate LGBT people or those living with HIV). Hiring or promotion discrimination can sometimes be proved by detailed analysis of the qualifications of candidates and statistical analyses of the employer’s practices, although such cases can be difficult and complex.

2. A Hostile Environment

Workplace discrimination against people because of their sexual orientation, gender identity or HIV status can create a hostile work environment that effectively makes it impossible for an employee to do his or her job. Overt harassment and the threat of violence or even blackmail are still a reality in many places of work.

If your employer has a nondiscrimination policy that prohibits discrimination on the basis of sexual orientation, gender identity and expression or HIV status, it is much easier to bring hostile conditions to a supervisor’s or personnel manager’s attention. But if you feel isolated in your workplace and unsupported by policies or management, consider reaching out to coworkers; allies could be crucial both for your peace of mind and to back any complaint you decide to file. Some employers, especially large ones, specifically offer to employees the resources of a centralized HR department that is ostensibly equipped to deal with problematic work environments at a local level when an employee feels that he or she cannot complain to the people who are the source of the problem.  You may also want to seek outside support for ideas about how and when to stand up for yourself.

3. Wrongful Termination

One of the most common types of employment discrimination cases Lambda Legal handles is wrongful termination of LGBT employees or employees with HIV. Perhaps an employer uses an official company “downsizing” as a pretext for discrimination. Such “layoffs” often are legal (even though they usually feel very unfair to the employees who lose their jobs), but not when an employee is targeted in an unlawful way based on irrelevant personal characteristics and would not otherwise lose his or her job.

As a general rule, employers may not need to present compelling or rational reasons when they terminate employees; even when their actions are arbitrary or unfair, they might not be illegal.  However, while this dynamic formerly posed a significant barrier to LGBT employees obtaining counsel and seeking legal redress, now the EEOC will accept charges filed by LGBT employees and investigate the claims. Their investigation includes asking the employer for a position statement and relevant records. The employer’s obligation to provide an explanation and pertinent documents affords an employee a realistic opportunity to substantiate his or her case, especially if the investigation centers on establishing whether the employer’s claimed reason for treating the employee in an adverse manner actually was a cover for discrimination (i.e., claiming that an employee was terminated for being late when similarly situated employees with worse histories of tardiness were not). 

If you are laid off or fired, your employer may offer you a severance package that requires you to sign an agreement that you will not bring a legal complaint. It’s up to each employee to consider the advantages and disadvantages of such an agreement—the advice of an attorney can be very helpful in deciding whether or not to accept such a severance agreement.

If you believe you were fired or let go for a discriminatory reason, speak with an attorney familiar with employment law or call Lambda Legal’s Help Desk for more information. (Also see “What should I do if I’m fired?”)

4. Sexual Harassment

Sexual harassment involves unwanted or unwelcome sexual behavior. At its most obvious, sexual harassment entails unwanted sexual advances from an employer or coworker that ask or seem to ask for a sexual interaction. But, it can also include lapses in workplace behavior of a sexual nature (verbal or otherwise) that treat you differently because of your gender, and can include inappropriate invitations, unwanted touching, sexually explicit gestures, pornographic pictures, sexist jokes and sexual overtones. The laws prohibiting sexual harassment apply equally to behavior between individuals of the same or different sexes. And many employer policies go beyond the legal definition of sex discrimination in the federal employment nondiscrimination law Title VII of the Civil Rights Act of 1964) and prohibit any sexually-tinged behavior or comments that make it difficult for you do your job because they make you feel uncomfortable, humiliated or unsafe.

If you are the victim of sexual harassment on the job, you have options, and if you intend to pursue a remedy under Title VII or under comparable state or local laws, you have certain obligations:

  • If you feel safe enough to do so, you should confront the harasser and ask him or her to stop the behavior.
  • Most workplaces have a sexual harassment policy that explains how to make a complaint; if yours does, there is an obligation under most laws to follow that process. For example, it may be specified that you promptly report any incidents of sexual harassment to your immediate supervisor or to the human resources department and/or your union representative. It can be helpful to document the harassment and any steps you take to address it. Your employer needs to be aware of the harassment in order to take action.
  • If your supervisor is the harasser, report the behavior to the next appropriate manager or to the human resources department and/or your union representative.
  • As with other forms of harassment and discrimination, copy and maintain a record of any complaint you make.

If you cannot reconcile the problem at your workplace, you may want to file a complaint with the U.S. Equal Employment Opportunity Commission and/or with your state’s fair employment practices agency (FEPA), if one exists.

5. Targeting Gender Identity or Expression

Transgender and gender-nonconforming (TGNC) employees frequently face discrimination, including harassment for not fitting gender stereotypes and discriminatory health insurance and restroom access policies. Discrimination because one is gender non-conforming has been held by the Supreme Court to be sex discrimination; the EEOC and federal courts recognize that this principle logically means that Title VII of the Civil Rights Act of 1964 (often called simply “Title VII”) also prohibits discrimination because an employee is transgender.  (For more about workplace discrimination against TGNC people, click here).

6. Violations of Privacy

In recent years, there has been a trend toward less privacy in the workplace. Some employers routinely monitor employee telephone calls, emails and Internet usage. Others conduct video surveillance of employees (even in locker rooms or restrooms) and review computer files. Some even conduct physical searches as well as searches of workers’ offices and possessions.

This lack of privacy can be of special concern to LGBT people and people with HIV. The absence of laws on workplace privacy means that unscrupulous employers and unethical individuals can collect and use confidential employment, financial and medical records about their employees from computer databases. While human resources personnel may rightfully need to review private data about benefits, family or Social Security, this information may be studied for inappropriate reasons as well. Or an employee may be asked to take written "personality" tests that inquire about very personal matters, including sexual orientation. Some of these tests may violate the law, although others involving high-security jobs may be legitimate.

Employees with HIV often experience ostracism and invasions of privacy because stigma associated with HIV is ever-present.  Also, your state’s HIV confidentiality law may not require that everyone at your job keep all information about your HIV status confidential (for example, disclosures made outside of the hiring and reasonable-accommodation protections of the Americans With Disabilities Act may not be covered).  So, carefully consider whether or not to disclose. For more about that, see HIV Discrimination in the Workplace.

Privacy is commonly violated for transgender employees as well, yet in 1999, the U.S. Court of Appeals for the Second Circuit ruled in Powell v. Schriver that it is “beyond a doubt” that transgender status is “excruciatingly private and intimate” for those who wish to keep it private. The privacy policy for transgender employees established by the federal Office of Personnel Management (OPM) states: “An employee's transition should be treated with as much sensitivity and confidentiality as any other employee's significant life experiences, such as hospitalization or marital difficulties.” (For more about the OPM policy, click here).

Also see Lambda Legal’s Workplace Rights and Wrongs.”

Can my employer use religion as an excuse for discriminating against me for being LGBT or HIV positive?

The answer depends on the kind of employer involved.  There are three categories to consider.  First, for a narrow class of religious employers and jobs, the answer is “yes,” discrimination is permitted and employees have no right to complain or to sue if they are refused employment or fired for discriminatory reasons.  This is due to something called the “ministerial exception,” which exempts religiously affiliated employers from all nondiscrimination laws that otherwise would apply. The “exception” is based on the First Amendment to the U.S. Constitution and it applies regarding clergy who conduct religious services or teach religious doctrine, even if they also teach secular subjects.  In 2012, the U.S. Supreme Court first applied this exception when it upheld Hosanna-Tabor Evangelical Lutheran Church & School’s termination of a fourth grade teacher and disallowed her disability discrimination lawsuit because she and all teachers had to be ordained as ministers of the faith in order to teach at the school. 

Second, the federal employment nondiscrimination law (Title VII of the Civil Rights Act of 1964) permits religious organizations to give a hiring preference to job applicants of the organization’s religious faith, but otherwise forbids discrimination on the grounds listed in the law (race, color, sex and national origin). The ban on sex discrimination is now understood as providing important protections for LGBT people, although the law in this area is still being developed by the courts and the EEOC. 

Third, Title VII prohibits employment discrimination based on religion by for-profit businesses and non-profits that are not religiously affiliated.  If you experience harassment or other adverse employment action because you are seen as not sharing the religious beliefs or practices of your supervisor or co-worker(s), you can file an EEOC or state agency charge of religious discrimination. In fact, the law requires employers to “accommodate,” or make allowances for, employees’ religious needs as long as employee requests do not impose undue burdens on the employer. Accommodations sometimes include adjustment in scheduling to permit Sabbath or holiday observances on days different from other workers, or wearing a head covering not usually permitted as part of workers’ standard uniforms.

Disputes can arise when an employee claims a religious right to proselytize with anti-LGBT assertions to co-workers in ways that cause interference and distress for others. If you experience religiously motivated harassment in the workplace because others disapprove of your LGBT or HIV-positive status, you can file a charge of sex or disability discrimination with the EEOC (or state Fair Employment Practices Agencies, FEPA’s, if available).

If your coworker(s) claim that they are entitled to harass or otherwise discriminate against you due to their religious beliefs and your employer has difficulty correcting the situation, please contact Lambda Legal's Help Desk or suggest us as a resource for your employer. We can help the employer understand that it need not fear a challenge to an anti-harassment policy that addresses statements and actions (as opposed to thoughts) and is enforced equally against all employees who mistreat coworkers. The idea is to refute any contention that the employer took action only against those with religiously based opposition to homosexuality.

Are LGBT public employees more protected from discrimination than LGBT private employees?

Court decisions and the EEOC have concluded that both public and private employers are precluded from discriminatory actions based on an employee’s gender identity or expression or transgender status.  But lesbian, gay, and bisexual public employees —that is, people employed by a municipal, county, state or federal agency or public schools from elementary to state college or university level—have more case law on their side recognizing that sexual orientation discrimination is prohibited than their counterparts working in the private sector.  This is because the federal and state constitutions protect employees of government, and those constitutions include “equal protection” guarantees and First Amendment protections for free expression (although with some limitations based on the needs of particular jobs).

FOR MORE INFORMATION: Contact our Help Desk if you feel you have experienced discrimination.