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New York LGBT Discrimination Attorneys


LGBTQ (lesbian, gay, bisexual, transgender or queer) discrimination is treating a job applicant or employee unfavorably because of that person’s sexual orientation, gender identity, gender expression, or transgender status. It is also LGBT discrimination to treat someone unfavorably because of the sexual orientation of someone they are close toSomeone who is discriminated against on the basis of sexual orientation may also be discriminated against or harassed on the basis of sex, gender, identity, disability (such as actual or perceived HIV status), or marital status.

Sexual orientation discrimination and transgender discrimination are not explicitly outlawed act under federal law like discrimination based on race, color, sex, religion, national origin, age, and disability. However, in New York state, courts have ruled in favor of LGBT rights, declaring that sexual orientation is protected under Title VII. This is not true in other states.

LGBT discrimination is a serious offense. New Yorkers are protected from LGBTQ discrimination by employers under Title VII of the Civil Rights Act of 1964 (Title VII), the New York State Human Rights Law (NYSHRL), the Sexual Orientation Non-Discrimination Act (SONDA), and the New York City Human Rights Law (CHRL).

New York LGBTQ Discrimination Lawyer


Know Your Rights

It is illegal for an employer to make employment decisions based on your sexual orientation, gender identity or transgender status.

Sexual orientation is defined as “heterosexuality, homosexuality, bisexuality, or asexuality.” Employees can be the victims of sexual orientation discrimination even if they do not identify with that group – the law protects against discrimination based on perceived sexual orientation or transgender status.

Employers cannot make employment decisions based on your sexual orientation, gender identity, gender expression, or transgender status instead of your skills or how well you do your job. This includes decisions about hiring, firing, discipline, distribution of benefits, promotion, compensation, job training, or any other condition of employment.

If you work in New York State and believe that you have been the victim of illegal discrimination, you are protected under federal, state, and New York City laws.

Examples of Illegal LGBTQ Discrimination in New York

Discriminatory Employment Decisions are Illegal

Making employment decisions – including hiring and firing – based on stereotypes about sexual orientation, gender identity, gender expression, or transgender status violates the law.

Examples:

  • A highly qualified job applicant has experience and excellent qualifications for a job. But after he mentions his husband during the job interview, the hiring manager ends the interview and does not hire the candidate.
  • Your employer says the company plans to lay off employees as part of a company reorganization. However, the only employees who are laid off identify as LGBTQ.
  • During your five-year tenure with your employer you have received glowing performance reviews. When your employer learns that you are transitioning from female to male, you start to receive unfounded negative reviews. This constitutes transgender discrimination. 

Failure to Promote Because of Sexual Orientation or Gender Identity

Laws against LGBTQ discrimination also protect employees from not receiving promotions, including tenure, because of discriminatory stereotypes.

Examples:

  • You are a woman who has worked at an accounting firm for years with excellent performance reviews. The partners at the firm refuse to consider you for partnership because they think you are too manly and do not “act as a woman should act.”
  • You have worked for your company for several years, receiving exemplary reviews and an employee-of-the-year award, but you recently came out at work and are no longer given the type of projects that would put you on track for a promotion.
  • You apply for a promotion that would put you in a client-facing role. Your boss says he doesn’t think you are well suited for the position, because the clients won’t respond well to someone who identifies as LGBTQ.

Discriminatory Differences in Pay are Illegal

The law protects you from differences in any form of compensation, including salary, overtime pay, bonuses, stock options, profit sharing, life insurance, and vacation or holiday pay that are based on your sexual orientation, gender identity, gender expression, or transgender status.

Examples:

  • An openly gay man worked his way up to the position of regional manager. A heterosexual regional manager with similar training and work experience was recently hired and he will be paid more.
  • You are a top salesperson for your company, but your employer reassigns your lucrative sales territory because you are transitioning from male to female and your employer thinks your clients will be confused.

Stereotypes and LGBTQ Discrimination

Employers cannot treat you unfavorably because of personal characteristics or stereotypes associated with sexual orientation.

The law prohibits employment decisions based on stereotypes and assumptions about your sexual orientation. For example, an employer cannot refuse to hire a qualified gay man as a childcare worker because the employer believes all gay men are pedophiles. This constitutes LGBT discrimination. 

Employers cannot excuse discriminatory decisions on the anticipated reactions of other employees or customers.

Employers also violate the law if they blame discriminatory decisions on the company’s employees or customers. In the above example, for instance, the employer cannot refuse to hire a gay man because the employer believes parents will not accept a gay childcare worker.

Segregating Employees Can Be Sexual Orientation Discrimination

If your employer physically isolates you away from other employees or customers because of your sexual orientation or transgender status, that conduct could constitute LGBTQ discrimination.

It is illegal to exclude people who identify as lesbian, gay, or transgender from certain positions or groups.

Policies With Discriminatory Effects

Unintentional LGBT discrimination can also be illegal.

Job policies that appear neutral can be discriminatory if they disproportionately harm workers with a particular sexual orientation. For example, an employer cannot offer six weeks of parental leave for the birth or adoption of a child for straight employees but refuse to offer the benefit to same-sex couples. 

However, if employers can show that the policy directly relates to the job, the policy may not constitute LGBT discrimination.

Discrimination by Association

It is against the law to discriminate against someone because of the sexual orientation of someone they know, such as a family member or friend.

Employers cannot treat you unfavorably because of:

  • Your relationship to a transgender person.
  • Close friends or relatives who identify as LGBTQ.
  • Your membership in, or association with, LGBTQ organizations or groups.

LGBTQ discrimination can still occur when the victim and the person who inflicted the discrimination identify as LGBTQ.

Hostile Work Environments

You can be the victim of LGBT discrimination in New York even when no employment decision is involved if discriminatory harassment has created a hostile work environment.

A hostile work environment can be created by:

  • Words, such as jokes or offensive or derogatory remarks about someone’s sexual orientation.
  • The display of offensive images, cartoons or drawings. Your employer may be responsible regardless of whether the offensive images are posted in a public area, displayed in a person’s office, or distributed via email.
  • Failure to use the person’s preferred name or pronoun.
  • Refusing to allow someone to use same-sex restrooms.
  • Imposing different uniforms or grooming standards based on sex or gender.
  • Considering gender or sexual orientation when evaluating requests for accommodations.

Hostile Conduct Must Be More Than Petty Or Trivial

New York City has a lower standard for hostile conduct than federal or state law. Only conduct that is unwelcome or severe meets the threshold for a hostile workplace according to federal and state law.

Under federal and state law, if comments or acts are not offensive in the extreme, they constitute harassment only if they occur often enough to create an intimidating, hostile, or offensive work environment. However, a single incident such as a physical assault, might be so threatening and insulting that it could rise to the level of harassment.

New York City, however, defines hostile conduct as more than a “petty slight” or “trivial inconvenience.

Victims Do Not Have To Be The Targets

Many people wrongly believe that only the target of hostile comments can be the victim of a hostile work environment. This is incorrect. You can be a victim even if you are not the person being targeted by the offensive behavior.

If the offensive behavior is affecting your ability to do your job, you may have a claim.

The Offender Does Not Have To Be Your Boss

Many also incorrectly believe that only your boss can create a hostile work environment. In fact, employers have a responsibility to prevent LGBTQ discrimination in the workplace..

While employers are generally liable for a supervisor’s behavior, they are also liable for the behavior of employees who are not in a position of authority over the victim if there have been complaints about the perpetrator or the perpetrator has committed acts against others. If the company knew or should have known about the discrimination, they may be liable.

A co-worker, a supervisor in another area of the company, or even a non-employee, like a vendor, can be the perpetrator of LGBT discrimination.

What To Do About LGBT Discrimination in New York

Discrimination can happen in any workplace. Fortunately, New York state provides multiple protections for workers affected by LGBTQ discrimination. If you think you are the victim of gay discrimination, transgender discrimination, or a hostile work environment, there are several steps you can take right away.

  • Start keeping notes of the discriminatory practices and/or harassment. Be specific in your details-write down the time and place of each incident, what was said and done, and who witnessed the actions.
  • Keep doing a good job. Make copies of your job evaluations and any letters or memos that show that you are doing a good job at work.
  • Seek support from friends and family, clergy, and, if helpful, a mental health professional. Harassment at work can be very stressful, and it is a difficult thing to face alone.
  • Report the incident in writing to your supervisor and human resources department. Tell them about the behavior and the steps you have taken to address it.
  • Check your company’s employee handbook. If your employer has a harassment policy in place, follow it.
  • Preserve any information such as inappropriate texts, pictures, or voicemails sent to you.
  • Put all of your complaints in writing and keep copies at home.

You can also reach out to a New York employment lawyer for a free consultation.

In New York, Retaliation is Illegal

If you complain about LGBTQ discrimination, it is illegal for your employer to take any action against you.

It is illegal for employers to retaliate against applicants or employees who complain about discrimination on the job, file a charge with the Equal Employment Opportunity Commission (EEOC) or any state or city agency, or participate-including being a witness-in an employment discrimination proceeding, such as an investigation or lawsuit.

You Are Protected From Retaliation Even If There Was No Discrimination

As long as you had a good faith and reasonable belief that discrimination or harassment occurred, your employer is barred from taking any action against you for speaking out or participating in any investigation or proceeding. It does not matter if an agency or court determines that there was no discrimination.

If you speak out about discrimination and harassment in your workplace, the law protects you from retaliation.

How to File a Claim For LBGTQ Discrimination

If you choose to file a claim for gay or transgender discrimination, you  have several options. You can file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC), which handles violations of federal law. The New York State Division of Human Rights handles NYSHRL violations, and the New York City Commission on Human Rights is responsible for CHRL violations.

If your claim falls under multiple laws, the three agencies have what is called a “work-sharing agreement,” which means they cooperate with each other to process your claims. There is no need to file a claim with each agency. You simply need to indicate that you want your claim “cross-filed” with the other agencies.

For specific information on how to file a claim with the EEOC, the New York State Division of Human Rights, or the New York City Commission on Human Rights, learn  how to file a discrimination claim. You can also contact a New York discrimination lawyer for help.

Comparing Discrimination Laws

Title VII NYSHRL CHRL
Covers United States Covers New York state Covers New York City
Applies to companies with more than 15 employees, including employment agencies, unions, and federal, state, and local governments, but not independent contractors or domestic workers. Applies to companies with more than 4 employees, including state and local governments and domestic workers. Applies to companies with more than 4 employees, including municipal employers and unpaid interns, as well as independent contractors under certain conditions.
Must first file a complaint with the EEOC within 180 days of the incident.

However, if the charge is also covered by state or city laws, the filing deadline is extended to 300 days.

You cannot file a Title VII claim in federal court without first filing with the EEOC.

Have a choice between filing your NYSHRL claim in state court or with the New York State Division of Human Rights.

If you decide to file a claim with the agency, you must do so within one year of the incident, or within 240 days, if your claim includes a Title VII claim.

You have 3 years from the date of the incident to file your claim in state court.

Have a choice between filing your CHRL claim in state court or with the New York City Commission on Human Rights.

If you decide to file a claim with the agency, you must do so within one year of the incident, or within 240 days, if your claim includes a Title VII claim.

You have 3 years from the date of the incident to file your claim in state court.

Reprimands and negative performance evaluations only covered if accompanied by a reduction in pay or demotion. Reprimands and negative performance evaluations only covered if accompanied by a reduction in pay or demotion. Performance evaluations and discipline decisions are covered by the law, even without reduction in pay or demotion.
Hostile work environment requires severe and pervasive harassment. Hostile work environment requires severe and pervasive harassment. The standard for harassment is lower. It is defined as more than a “petty slight” or “trivial inconvenience.”

Legal Remedies for Discrimination

Victims of LGBT discrimination can receive multiple legal remedies, including back pay, compensatory damages, and all attorney’s fees. These remedies include:

  • Back Pay: The money and fringe benefits that you would have earned if your employer had not discriminated against you. This can include wages, bonuses, stock options, vacation leave, healthcare costs, and pension payments.
  • Reinstatement: Your employer can be forced to give you back your job if you were fired or to give you the promotion you were denied.
  • Front Pay: The court can award the amount of money necessary to make up for the difference in pay that you would have earned in the future if not for the discrimination. The amount of front pay depends on how long the court determines it will take for you to return to the same level of pay you had when you were wrongfully terminated.
  • Compensatory Damages: These damages compensate you for any out of pocket expenses caused by the discrimination, including the cost of therapy, lost wages, or the cost of finding a new job. It also covers emotional pain and suffering.
  • Punitive Damages: These damages are intended to punish the employer and deter future discriminatory actions. Punitive damages can be awarded under New York City law if the employer showed negligence, recklessness, or a conscious disregard of your rights.
  • Attorneys’ Fees and Costs: If you win, your employer can be required to pay your attorney for their work on your case, as well as expert witness fees and court costs.

Potential Damages Under Different Discrimination Laws

Title VII NYSHRL CHRL
Compensatory Damages Yes

15-100 employees: up to $50,000

101-200 employees: up to $100,000

201-500 employees: up to $200,000

over 500 employees: up to $300,000

Yes

Unlimited

Yes

Unlimited

Punitive Damages Yes

15-100 employees: up to $50,000

101-200 employees: up to $100,000

201-500 employees: up to $200,000

over 500 employees: up to $300,000

You cannot receive punitive damages if you are suing a government employer (federal, state or city).

No Yes

Unlimited

Back Pay Yes

Determined by the court.

Yes

Determined by the jury.

Yes

Determined by the jury.

Reinstatement Yes Yes Yes
Front Pay Yes

Determined by the court.

Yes

Determined by the jury.

Yes

Determined by the jury.

Liquidated Damages No No No
Attorney Fees Yes No Yes
Can You Bring Suit Against An Individual Supervisor No Yes Yes
Prejudgment Interest Yes Yes Yes
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