Hostile Work Environment – Sexual Orientation Discrimination

In recent decades, laws and policies have been created and amended throughout the United States to protect non-heterosexual American workers. An example of this is RCW 49.60.030, the Washington State Freedom from Discrimination law. However, unlike race and sex, which are uniformly protected throughout the country, sexual orientation is not. It is still legal to fire an employee for being gay, lesbian, bisexual or otherwise non-heterosexual in twenty-nine states. Legislation has been proposed to add sexual orientation and gender identity to the list of protected classes in the Civil Rights Act of 1964, but none of these have passed yet.

However, it is illegal to discriminate against an employee due to his or her sexual orientation in Washington. Discrimination can be any behavior ranging from off-color jokes about sexual practices or preferences, refusal to promote an employee to a certain position because of his or her sexual orientation, compensating an employee at a lower rate than similarly-qualified employees because of his or her sexual orientation, and segregating certain employees into certain roles because of their sexual orientation. When discrimination in the workplace reaches the point that it prevents employees to effectively perform their jobs, the workplace may be deemed to be a hostile work environment. There is no legal definition of a hostile work environment. Instead, the evidence of discrimination is presented to the court or the Human Resources department for a company, who then reviews it and determines whether or not a reasonable person could objectively deem that it is, in fact, a hostile work environment.

Examples of Sexual Orientation Discrimination

Sexual orientation discrimination can manifest in many ways in the workplace. The following are examples of this type of discrimination.

  • Using offensive language and derogatory words and phrases toward employees;
  • Refusing to promote an employee because of his or her sexual orientation or perceived sexual orientation;
  • Giving an employee an undeserved poor performance review because of his or her sexual orientation rather than his or her job performance; and
  • Asking a prospective employee about his or her sexual preferences and current or past partners.

Employees might also experience discrimination based on their gender identity. Washington state laws protect employees from gender identity-based discrimination as well as sexual orientation discrimination. An individual’s gender identity is his or her sense of gender. In other words, it is his or her sense of being male or female. Although most individuals’ sense of gender aligns with their biological sex, some individuals identify as the opposite gender or as neither gender or a combination of both. All of these identities are protected under RCW 49.60.030. An example of gender identity-based discrimination would be continually using a gender pronoun other than the one preferred by an employee when speaking to or about him or her.

Hostile Work Environment Attorneys Can Help

If you have experienced workplace discrimination because of your actual or perceived sexual orientation or gender identity, call our firm at 206-838-2504 to discuss your case with an experienced employment attorney. The team of attorneys at HKM Employment Attorneys LLP understands Washington state discrimination laws and can help you develop your case and work with you toward a productive solution.