William Phillips and Steven Fingerhut Discuss LGBT+ Inclusivity in the Workplace with Lawyers Monthly
In recognition of Pride Month, Lawyer Monthly magazine recently spoke with William Phillips, the managing partner of Phillips & Associates, and Steven Fingerhut, an associate attorney at Phillips & Associates, regarding the rights of the LGBT+ community in the workplace. Phillips & Associates is an employment discrimination law firm that represents plaintiffs in lawsuits in the New York metro area and in New Jersey and Pennsylvania.Laws Protecting LGBT+ Individuals from Discrimination
The term LGBT+ is used broadly to refer to a person’s sexual orientation or gender identity. Gay, lesbian, and bisexual individuals are members of a protected class due to their sexual orientation, whereas transgender people are part of a different protected class based on their gender. The “+” in LGBT+ refers to a wider range of gender and sexuality, including intersex, questioning, and pansexual people.
The extent of protection from discrimination provided to employees who are LGBT+ generally depends on where the person is employed. On the federal level, no law expressly defines a person's gender identity or sexual orientation as a protected characteristic with regard to discrimination in a private work setting. LGBT+ employees have been able to recover damages for discrimination based on gender identity and sexual orientation, however, by arguing that it constitutes discrimination based on sex, which is barred under Title VII of the Civil Rights Act of 1964 (Title VII). Members of the LGBT+ community have effectively asserted gender stereotyping as a basis for gender identity and sexual orientation discrimination claims as well.
In contrast to the federal laws, the New York City Human Rights Law (NYCHRL) provides broad protections against discrimination, explicitly defining gender identity and sexual orientation as protected categories. Thus, employees pursuing discrimination claims under the NYCHRL do not need to allege that they were adversely treated on the basis of sex but instead can allege discrimination based on their gender identity or sexual orientation.Actionable Forms of Discrimination Against Members of the LGBT+ Community
Whether harassment or discrimination is actionable depends on which law applies. To prove that an employer should be held liable for a hostile work environment under Title VII, employees must show that they suffered from harassment that was so pervasive or severe that it altered the conditions of the victim’s employment. This is a relatively high burden to meet, although it has been met in many cases. Conversely, under the NYCHRL, any harassment that is more than a petty slight or trivial inconvenience is actionable if it was perpetrated based on an employee’s membership in a protected class. Furthermore, employees are not required to disclose information regarding their gender identity or sexual orientation, and repeated questions regarding their sexual orientation or gender identity may constitute harassment.Ways for Employers to Be Inclusive to Members of the LGBT+ Community
Generally, employers should emphasize that employees are free to voice complaints regarding harassment or discrimination and that support is available for anyone wishing to discuss a personal or sensitive issue. If LGBT+ employees are discouraged from making a complaint regarding harassment or discrimination, they should reach out to an attorney regarding their options for seeking recourse.Damages Recoverable for Sexual Orientation and Gender Identity Discrimination
Typically, victims of discrimination on the basis of sexual orientation or gender identity may be entitled to compensation for lost wages or for enduring a hostile work environment. Additionally, under the NYCHRL, employees harmed by discrimination may be able to recover punitive damages. Ultimately, the damages recoverable depend on the unique facts of each case, and anyone harmed by workplace discrimination or harassment should consult an attorney to discuss their rights.Meet with a Seasoned Employment Discrimination Attorney in New York
The laws prohibiting discrimination continue to evolve, providing increased protections for members of the LGBT+ community. If you identify as LGBT+ and were mistreated by your employer, the attorneys at Phillips & Associates can advocate for you in your pursuit of compensation. You can contact our office at (212) 248-7431 or through the online form to schedule a free and confidential meeting to discuss your case. We represent people in employment discrimination claims in New York City and in Westchester, Nassau, and Suffolk Counties, as well as New Jersey and Pennsylvania.