Suing for Sexual Orientation Discrimination

Sexual orientation discrimination in the workplace is illegal in many parts of the country.

Have you been discriminated against at work because of your sexual orientation? If so, you may be wondering if there are laws that protect you from sexual orientation discrimination and whether you have any legal rights to challenge your employer. The short answer is that it depends on where you live.

This article explains how to bring a sexual orientation discrimination lawsuit. For general information about sexual orientation discrimination, see Sexual Orientation Discrimination: Your Rights.

Sexual Orientation Discrimination

An employer discriminates based on sexual orientation when it treats an employee differently than other employees because of his or her sexual orientation. For example, a restaurant that replaces a lesbian bartender with a heterosexual female bartender in order to attract male patrons has committed sexual orientation discrimination.

However, even the most egregious act of sexual orientation discrimination may not be a violation of law, depending on where the employer is located. Many states and cities have expressly outlawed discrimination based on sexual orientation. Federal law may also protect employees from sexual orientation discrimination. Talk to a lawyer if you’re unsure whether you’re protected by any laws that bars sexual orientation discrimination.

Federal Law

Federal law does not expressly prohibit discrimination in employment based on sexual orientation for private employers. However, there is a legal debate as to whether Title VII's prohibition against sex discrimination also covers sexual orientation. The agency that enforces Title VII, the Equal Employment Opportunity Commission (EEOC), has interpreted the law to prohibit discrimination based on sexual orientation and gender identity. Some courts agree, while others don't. Currently, there is a split among federal appeals courts as to whether sexual orientation is protected under federal antidiscrimination laws.

Federal law is much clearer when it comes to the rights of same-sex spouses. The U.S. Supreme Court has held that all states must recognize same-sex marriages and that same-sex spouses cannot be denied benefits given to opposite-sex spouses. For example, employers must allow employees to take leave under the federal Family and Medical Leave Act (FMLA) to care for a same-sex spouse with a serious health condition.

State Law

Around twenty states and the District of Columbia have laws expressly barring sexual orientation discrimination in private workplaces. If you live in one of these states, you are protected from discrimination and harassment based on your sexual orientation. If you don't live in one of these states, you might still be protected under federal law (discussed above) or by your local city or county laws (discussed below). Consult with a local employment lawyer to figure out your rights.

Local Laws and Ordinances

Some cities and counties have passed local ordinances that prohibit sexual orientation discrimination in private employment as well.

Sexual Orientation Discrimination Lawsuits

If you are covered by a law that prohibits sexual orientation, you should understand that employment discrimination lawsuits can be a complex and lengthy process. You will benefit from hiring a skilled employment lawyer to represent you early in the process. An experienced lawyer can also help you explore the pros and cons of filing a lawsuit and recommend the best course of action for resolving your claims.

Filing an Administrative Complaint

In some cases, you will need to file an administrative complaint with an appropriate agency before proceeding with a lawsuit. For example, if you are bringing a case under Title VII, you will need to file an administrative complaint with the EEOC before filing a lawsuit. The EEOC is currently accepting and investigating claims of sexual orientation discrimination.

Many states have similar requirements. For example, employees who want to sue under California's antidiscrimination laws must file an administrative complaint with the California Department of Fair Employment and Housing. Once the relevant agency has conducted its investigation, you will typically be notified so that you can file a complaint in court. For more information, see our article on suing for harassment or discrimination.

Filing in Court

Once you have fulfilled any administrative complaint filing requirements, you can file a lawsuit in court. Before doing so, you should consult with an experienced employment lawyer in your area. It is usually in your best interest to hire a lawyer to prepare the documents for filing and represent you in court. Every court has its own rules and procedures for every stage of a lawsuit; making a mistake can mean that your lawsuit gets dismissed before you even have a chance to offer evidence. For example, if you don’t file on time, or you don’t specify enough facts to establish a legal claim, your complaint may be thrown out.

Discovery

The next stage of a lawsuit is called “discovery.” In the discovery stage, you and the employer will gather evidence, typically through your respective attorneys. Your lawyer will take depositions (recorded statements under oath) of witnesses or alleged wrongdoers, request or subpoena documents, ask and answer written questions (called “interrogatories”), and otherwise collect evidence to use at trial. Your employer’s lawyer will also take your deposition during this stage of the lawsuit. This experience will be much like testifying in court because you will answer questions under oath that will be recorded in a transcript.

Trial

After the discovery stage concludes, you and your lawyer will prepare the evidence to be submitted at trial. You must be present in court for every day of trial, which may take several days and even weeks in some cases. Your lawyer will prepare you and other witnesses to testify and explain the trial process to you throughout. Most cases settle before trial, however.

Mediation

At various times between filing the lawsuit and receiving the jury’s verdict at trial you, will very likely have an opportunity to try to settle your case, usually with the help of a neutral third-party mediator. A mediator is usually a judge, an experienced attorney, or another individual hired by agreement of both parties. During mediation, both parties will make settlement proposals through the mediator. The vast majority of cases do settle, but every case is different. Your lawyer and the mediator will explain the relative strengths and weaknesses of your case to help you make settlement offers and respond to your employer’s offers. Unlike a trial, mediation does not result in one side “winning.” Instead, if the settlement effort is successful, you and your employer resolve the matter by agreed terms (including a settlement payment). If it is not successful, you continue on to trial.

Fees and Costs

There’s no way around it—lawsuits are expensive. Even if your lawyer takes your case on a contingent fee basis (meaning she or he takes a percentage of your award rather than charges by the hour), you may still face large bills along the way. This is because many aspects of the process are costly, such as depositions, which can cost thousands of dollars per day. Another large cost is paying economists or other expert witnesses who are necessary to present your wage and other financial losses to the jury. Some employment lawyers may be willing to pay costs up front and deduct them from your recovery, but get this point ironed out at the beginning.

Talk to a Lawyer First

If you are considering filing a lawsuit against your employer for sexual orientation discrimination, it’s a good idea to talk to an employment lawyer to help you assess the likelihood of success at trial and decide on the best course of action.

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