Legal Advice from Yetta G. Kurland

Answers to your LGBT-focused legal questions

Dear Yetta,

I work at a midsized company, and while it is not generally known, some of my co-workers are aware that I have had a long-term partner, a woman. I feel I have been a consistently good worker for the company, but lately, I have been receiving what I believe is unfair criticism and treatment from my supervisors. I don’t know that it’s based on my sexual orientation, but my instinct tells me that it might be. What should I do?
Dear Jessica,

Let’s start with the first step: Go to Human Resources and share your concern. Often, this will lead to an informal or formal investigation by the HR Department. If the investigation does not remedy the problem, or if the company fails to remedy the situation, you may want to speak to an attorney.

You and your attorney should discuss everything that has happened in your career at the company, including the most recent treatment. As your attorney will advise you, there are typically two ways to show employment based discrimination: (1) disparate treatment, and (2) disparate impact. Based on your view of what has happened, it sounds like you should explore the possibility of a disparate treatment claim, which requires you to show that you have been treated differently than your straight counterparts because of your sexual orientation. To establish a disparate impact claim, you would need to show that a company policy has had a discriminatory effect on you, which doesn’t sound like the problem you’re facing. Remember, actions can only be discriminatory if they’re taken against you based on your membership to a protected class, such as being LGBTQ. Mistreatment just because your supervisors are being mean-spirited or unfair, etc. is not actionable under federal laws (Title VII) or state laws (such as New York State Human Rights Laws).

If you and your attorney would like to pursue a remedy for the potential discrimination, then you can file a claim with your state or local agencies (in New York you can go to the New York State Division of Human Rights or New York City Human Rights Commission) or you can file an action directly in Court. You can also now, effective July 16, 2015, file a complaint for discrimination based on sexual orientation with the United States Equal Employment Opportunity Commission (EEOC). The EEOC, with offices all across the country, is responsible for enforcing federal laws that make it illegal to discriminate against job applicants or employees under Title VII of the Civil Rights Act of 1964. Unfortunately, the Civil Rights Act does not include sexual orientation, and there is still no federal statute that prohibits employment discrimination based on sexual orientation but the EEOC taking these cases is hopefully a big first step.

I hope this answers your question, and I’m sorry you are having these problems.

–Yetta

Email questions to info@kurlandassociates.com or call 212-253-6911.

*This column is not a consultation with an attorney and should in no way be construed as such or as a substitute for such consultation. Anyone with legal issues or concerns should seek the advice of her own attorney.