LGBTQ Discrimination

Boston Lawyers Protecting the Rights of Employees

When you go to work, you likely hope to be judged on your work performance, rather than an aspect of your identity. Unfortunately, sometimes Massachusetts employers still make employment decisions in biased and bigoted ways. You may find yourself denied a promotion or job or paid less because of your sexual orientation or gender identity. Whether you had a remedy for this type of discrimination was, until recently, a question that had different answers, depending on the court and the jurisdiction that heard the case. However, a U.S. Supreme Court ruling in June 2020 has settled the question of whether discrimination based on sexual orientation or gender identity is prohibited under federal law. If you were harmed by discrimination in the workplace, you should consult the Boston LGBTQ discrimination lawyers at Breakstone, White & Gluck.

Federal Law and the Recent Supreme Court Decision

One of the primary federal anti-discrimination laws is Title VII of the Civil Rights Act of 1964. Title VII forbids employment discrimination based on an employee’s sex, religion, national origin, race, or color. Title VII applies to employers with at least 15 employees.

Discrimination under Title VII involves treating someone worse than others who are situated similarly. In the workplace, it can include an employer’s failure to hire, failure to promote, demotion, failure to offer comparable pay, or failure to provide the same opportunities. Thus, it can include an adverse action involving any of the terms, conditions, or privileges of employment. Discrimination can also take the form of disparate treatment. In that case, the difference in treatment needs to be intentional.

The recent Supreme Court decision in Bostock v. Clayton County held that an employer that discriminates based on sexual orientation or gender identity has discriminated based on sex and can be held accountable for that discrimination. In other words, sexual orientation discrimination and gender identity discrimination are forms of sex discrimination. Our LGBTQ discrimination attorneys can help Boston residents hold employers accountable for this misconduct.

In each of the three cases decided by the Bostock opinion, an employer terminated a long-time employee, allegedly based on the employee’s homosexuality or transgender status, soon after the employee told the employer that he or she was homosexual or transgender. The Court reasoned that discriminating due to an employee’s homosexuality or transgender status inescapably involved an employer intentionally treating workers differently because of their sex.

The Court explained that it is not relevant what the employer calls the practice or what else might motivate it. Your sex does not need to be the primary or sole reason for the employer’s adverse action for sexual orientation discrimination or gender identity discrimination to exist.

Instead, when an employer discriminates against someone for their homosexuality or transgender status, it is taking an adverse action against that person for actions or traits that would not have been questioned in someone of a different sex. For example, if you were not promoted because you are gay, this would be sexual orientation discrimination. For another example, if a prospective employer does not hire you because you disclosed that you were transgender during a job interview, this would be gender identity discrimination. Our Boston LGBTQ discrimination attorneys can help employees bring claims in these situations.

It is rare for an employer to openly disclose that bigotry was the reason for an adverse employment decision. Thus, an employee should retain an experienced attorney who understands how to obtain the evidence needed to establish LGBTQ discrimination and how to marshal that evidence and make arguments in court to secure justice.

Massachusetts Law

Massachusetts law also prohibits sexual orientation and gender identity discrimination under the Massachusetts Fair Employment Practices Act (FEPA). FEPA applies to employers with at least six employees. Under FEPA, an employer cannot refuse to hire an employee and cannot terminate their employment based on sexual orientation or gender identity discrimination. An employer also cannot discriminate against someone in compensation or in the privileges, terms, or conditions of employment, unless the difference in treatment is based on a bona fide occupational qualification (BFOQ). Under state law, an employer also is not allowed to advertise while expressing any restriction as to sexual orientation or gender identity, unless this preference is based on a BFOQ.

Retain an LGBTQ Discrimination Lawyer in the Boston Area

If you have faced LGBTQ discrimination in the workplace, you should consult the seasoned trial attorneys at Breakstone, White & Gluck. We represent employees in Suffolk, Middlesex, Bristol, Barnstable, Essex, Plymouth, Norfolk, Worcester, and Hampden Counties. Call us at 800-379-1244, or contact us through our online form.