Employment Discrimination

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Legal Protections in the Workplace for LGBT Individuals

Who is protected?

Connecticut’s anti-discrimination law prohibits discrimination in employment against any employee who is gay, lesbian or bisexual or who is identifed as being gay, lesbian or bisexual. You do not have to be “out” to be protected. You do not even have to be gay to be protected from discrimination based on sexual orientation..

Does it apply to all employers?

Connecticut’s anti-discrimination law pertains to most employers with three or more employees. Connecticut’s law does not apply to religious organizations with respect to the employment of individuals to perform work connected with the carrying on of its religious activities. Nor does it protect persons employed by their parents, spouse or child, or anyone working in domestic service.

What constitutes discrimination?

Determining what constitutes discrimination can be tricky. Some actions (or inaction) are clearly discriminatory. Hiring or termination decisions cannot be based on an individual’s sexual orientation. Connecticut also prohibits discrimination in terms, conditions or privileges of employment. As a result, employment decisions beyond hiring and firing may also not be based on an employee’s sexual orientation or perceived sexual orientation. This prohibition includes the employer’s decisions regarding compensation, promotion, job classification, training, demotion, and transfer as well as many other terms of employment.

What counts as a term of employment may be quite broad. It includes denial of job promotions, benefits, and performance evaluations. In addition, an employer may not discriminate in shift, holiday, or vacation preferences based on an employee’s sexual orientation or perceived orientation. Nor may an employer assign a gay employee less preferable duties on the grounds of sexual orientation.

It is not possible to identify everything which may count as a term, condition or privilege of employment in a particular workplace. As a general rule, an employer must not treat similarly situated gay and non-gay employees differently. Different treatment of gay employees because they are gay amounts to discrimination. For example, if non-gay employees generally discuss details of their personal lives in the workplace, including conversations about their spouses, an employer could not discipline only gay employees for engaging in the exact same conduct. Such discipline would amount to a denial of an employment privilege based on sexual orientation. As a second example, consider the case of an employer who receives complaints from co-workers about a particular gay employee. If the employer typically investigates co-worker complaints about a non-gay employee before crediting them, the employer may not credit the co-worker complaints about the gay employee without a similar investigation.

Another type of different treatment may occur when a gay employee is singled out and harassed by co-workers or supervisory personnel. For example, co-workers might make disparaging or homophobic comments to the gay employee. Where these comments are sexual in nature, the employee may also have a claim for sexual harassment. (See discussion below.) If the comments are not necessarily of a sexual nature and the employee has not suffered an adverse consequence, a gay employee may still have a claim for discrimination where the homophobic or disparaging remarks affect the employee’s ability to do the job.

GLAD has heard of a number of situations where, once co-workers found out that one of their co-workers was gay, the co-workers started interpreting the gay employee’s conversations and actions as sexual harassment. For the reasons discussed above, an employer should not validate a charge of sexual harassment made by a non-gay employee against a gay employee where the gay employee has simply discussed his/her personal life to the same extent non-gay people discuss their personal lives. Singling out the gay employee for disciplinary action based on the gay employee’s conversations about personal matters generally commented on in the workplace by non-gay employees is likely discrimination.

The mere fact of discrimination does not guarantee a successful lawsuit. Proving the legal responsibility of an employer for such anti-gay harassment may turn on whether the comments were made by co-workers or by supervisory personnel and what, if any, response the employer had when the gay employee reported the misconduct. As a general matter, Connecticut courts have followed the federal courts’ interpretations in the area of employer liability for discrimination perpetrated by employees. The federal standard and the one Connecticut courts have applied is that an employer is liable for discrimination by a supervisory employer. With respect to discrimination by co-workers, an employer is liable for such misconduct if it knew or should have known of the harassment and failed to remedy it.

What must I show to prove I have been discriminated against?

You must prove that sexual orientation was a motivating factor in whatever employment decision forms the basis of your discrimination claim. Once you do that, your employer has to show that it would have taken the same action even if your employer did not know or perceive that you are gay. As long as you can show that your sexual orientation was a motivating factor for your employer’s discriminatory conduct, in order to avoid liability, your employer must show that it would have taken the same action even if it had not taken your sexual orientation into account.

Do laws prohibiting sexual harassment apply to gay people?

Connecticut’s anti-discrimination law prohibits sexual harassment. This means that an employer may not condition any employment decisions on an employee’s submission to unwelcome sexual advances or requests for sexual favors. Nor may an employer permit or condone conduct that creates a hostile or offensive working environment. The language of the state law and recent guidance from the Supreme Court in construing federal anti-discrimination law suggests that state prohibitions on sexual harassment apply equally to gay and non-gay employees. This means that prohibitions on sexual harassment pertain to men who harass men (whether gay or non-gay) as well as to women who harass women (whether gay or non-gay).

As stated above, Connecticut courts have typically been guided by the federal courts’ interpretation of anti-discrimination law. Assuming this trend continues, recent decisions of the Supreme Court suggest an employer is strictly liable for sexual harassment by a supervisor when the sexual harassment results in the employer taking an adverse employment action such as discipline, denial of a promotion, or reassignment. When no tangible employment action is taken but the employee charges a supervisor with sexual harassment, the employer may defend by proving that the employer exercised reasonable care to prevent and correct the sexually harassing behavior, and the employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer, such as sexual harassment policies.

Where the sexual harassment is perpetrated by co-workers, an employer is liable for the conduct if it knew or should have known of the harassment and failed to take prompt and appropriate steps to remedy it.

Can I be fired for complaining about discrimination or sexual harassment?

Some employees worry that if they exercise their right to redress sexual orientation discrimination then their employer will retaliate against them. Connecticut’s anti-discrimination law prohibits retaliation by an employer against an employee because the employee files a complaint of discrimination or assists someone else in the prosecution of a complaint. This prohibition covers any steps taken by an employer including expulsion or termination in retaliation for an employee making efforts under the anti-discrimination law to stop unlawful discrimination. If the employer retaliates, the employee faces the same choices about how to respond to the retaliation as with discriminatory acts of the employer.

What do I do if I think I have been discriminated against?

The decision of how to respond to discrimination in the workplace is a difficult and very personal one. Each case is different and you are well-advised to seek peer and legal advice before deciding how to proceed. A document as broad as this one cannot incorporate every job scenario and discrimination nuance and as a result can serve, at best, as an incomplete checklist of alternatives to consider.

A person subjected to discrimination in the workplace has a number of non-litigation alternatives which may or may not be effective removing problems attendant with being the object of discrimination. What follows is an incomplete list of options followed by some discussion of the ramifications of each alternative. When weighing the alternatives, do not ignore physical safety concerns and keep in mind that most legal recourse requires a lengthy period of litigation. Some of these options can be pursued simultaneously. The decision about how to proceed is yours. To fully consider the ramifications of all of the choices, you should consult an attorney.

You can:

• Tolerate the Discrimination. People remain in jobs where they experience discrimination for a variety of reasons. Economic necessity is one of the foremost factors to consider in deciding whether or not to complain about discrimination. Some people live in small (or not so small) communities where complaining about workplace discrimination could have devastating personal repercussions which are simply not worth risking. If you choose to remain in a job where you are discriminated against, it may be advisable to seek support from friends or family to minimize the damaging effects of such discrimination.
  
  
• Leave Without Challenging the Discrimination. Most employment is at-will. From the employee’s perspective, this means that you may quit your current position for any reason or no reason at all. Sometimes the best option is to quickly remove yourself from a workplace where you are discriminated against and for many of the reasons discussed above, the repercussions of seeking redress are not worth the risks.
  
  Even if your position is a contractual one, and not at-will, an employer could be persuaded not to enforce a contract term in exchange for an employee’s agreement not to take legal action in pursuing a legal remedy.
  
  
• Follow Internal Grievance Procedures. Many employers provide internal grievance procedures when an employee has suffered discrimination in the workplace. This is particularly true for employers that have anti-sexual harassment policies. Sometimes, curtailing discriminatory conduct of a supervisor or a co-worker is as simple as notifying human resource personnel who may be responsible for ensuring a workplace free from discrimination. There may be reasons to follow internal grievance procedures even if you are convinced an employer is unwilling to redress your concerns. A court or administrative agency that hears your claim may determine that your failure to follow internal procedures deprived your employer an opportunity to rectify the situation.
  
  On the other hand, there may be reasons not to follow internal grievance procedures. Notifying an employer about discrimination could (where confidentiality is not adequately maintained) result in your being more “out” than you prefer as your employer could disseminate information about your sexual orientation to others in the workplace.
  
  Again, you should consider all of the possible repercussions of your choices. Note, however, that recent caselaw suggests that an employer may successfully defend against a charge of sexual harassment if you unreasonably fail to avail yourself of opportunities provided you to notify your employer of the misconduct. An employer with a sexual harassment policy would likely vigorously defend against a charge of sexual harassment where an employee failed to follow internal grievance procedures.
  
  
• Take Intermediate Steps in Anticipation of Litigation.
  
  1. Make a chronology of events leading up to and following the discrimination. Include as much detail as possible including names, witnesses, a description of events, locations, etc. Be sure to write down all offensive comments or actions. Retain this chronology; do not provide it to your employer.
  2. Save any written notes, articles, documents, or letters you received during the as a result of the discriminatory actions.
     
  3. Try to get a letter of recommendation when appropriate. A letter of recommendation can be extremely useful if you press your case legally.
     
  4. Obtain your personnel file. Connecticut law requires that an employer provide a copy of an employee’s personnel record upon the employee’s written request. Conn. Gen. Stat. § 31-128g.
     
  5. Retain all written policies, procedures, and employee manuals you receive during the course of your employment.
     
  6. Apply for unemployment. Even if you do not think you will be eligible because you were fired, filing for unemployment clearly signals your employer that you do not agree with the employer’s actions.
     
     
• Take Legal Action. Connecticut prohibits sexual orientation discrimination, and you do have legal recourse.
  

What do I do if I want to take legal action?

Determining how to proceed depends on whether you work for the State of Connecticut or for a private-sector employer. For claims of discrimination based on sexual orientation, employees working for private-sector employees must first file a complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO). Connecticut state employees may bypass the CHRO and sue the state directly in court. Because the CHRO is more limited in the types of damages it can award, persons who may sue in state court are well advised to do so. You may contact the CHRO by calling (800) 541-3400 or by writing to the Connecticut Commission on Human Rights and Opportunities at 21 Grand Street Hartford, CT 06106.

When must I file a complaint with the Commission?

All complaints with the Commission must be filed within 180 days after an employee has been subjected to discrimination by the employer. This is a firm deadline. The Commission generally allows no exceptions; failure to file within 180 days of the discriminatory conduct will result in your case being dismissed.

Do any other laws protect me?

Although federal anti-discrimination law does not yet protect employees from discrimination rooted in sexual orientation, federal law provides relief for victims of sexual harassment regardless of the sexual orientation of the harasser or victim. Federal law also provides relief for sex and disability discrimination which may also be applicable in some cases. When applicable, an employee may file a complaint both with the CHRO and the United States Equal Employment Opportunity Commission.

In certain circumstances, promises made by employers in personnel manuals, written employment policies, and employee handbooks can be contractually binding on the employer. This contractually binding commitment can apply to anti-discrimination policies contained in such documents. The law in this area can be complicated; any aggrieved employee who believes that promises made by an employer in such documents have not been met should consult an attorney. In any case, all employees should keep copies of all personnel manuals and materials distributed during the course of their employment.