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Mansell Law, LLC Experienced Employment Lawyers

NYC LGBTQ Discrimination Lawyer

Our New York City LGBTQ discrimination lawyers represent employees all over NYC in sexual orientation discrimination cases and lawsuits. We have successfully represented individuals related to LGBTQ discrimination, retaliation, and violations of Title VII rights. Our NYC employment lawyers are up to date on the evolving laws in this area and can evaluate your case today. Give us a call today for a free consultation!

How Can I Prove that I have been Discriminated Against because I am LGBTQ?

Under Title VII of the Civil Rights Act of 1964, New York State Human Rights Law (NYSHRL), and New York City Human Rights Law (NYCHRL), employers are prohibited from refusing to hire, employ, or otherwise discriminate in the terms, conditions and privileges of employment, because of an individual’s status as a member of a “protected class.” Under Title VII, protected classes include race, color, national origin, sex, religion, and/or disability. On June 15, 2020 the Supreme Court of the United States held in Bostock v. Clayton County, Georgia, that Title VII prohibits an employer from terminating an employee solely based on the employee’s sexual orientation or gender identity. Prior to this decision, LGBTQ discrimination was only prohibited if a plaintiff could prove that the discrimination arose from sex stereotyping or gender non-conformity – both subsets of sex discrimination claims. But these claims were often difficult to prove as sexual orientation and gender identity often do not fit neatly into sex stereotyping and gender non-conformity claims.

New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHR) provide broader protections to LGBTQ employees by explicitly prohibiting discrimination based on an employee’s sexual orientation or gender identity or expression. To successfully assert a claim for LGBTQ discrimination you must prove:

(1) you are a member of a protected class (i.e., a member of the LGBTQ community);

(2) you were qualified for your employment position;

(3) you experienced an adverse employment action; and

(4) that the adverse employment action occurred under circumstances giving rise to an

inference of discriminatory intent.

How do I Prove I am in a Protected Class Under Title VII?

For an LGBTQ discrimination claim under Title VII, the Supreme Court has found that “sex” discrimination Under Title VII, encompasses sexual orientation, the biological differences between men and women, and gender identity discrimination because sexual orientation and gender identity discrimination necessitates a consideration of the individual’s “sex”.

For example, sexual orientation discrimination occurs if an employer fires an employee because he is a man married to a man, but would not terminate a woman because she is married to a man. This termination would be discriminatory under the employee’s Title VII protected status of “sex” because the termination would not have taken place if the employee was not a man.

Similarly, if an employer fires an employee because that person was identified as female at birth, but now identifies as male, the employer is discriminating against that employee because of the employee’s sex since the termination would not have occurred if the employee had not been identified as female at birth.

What is an Adverse Employment Action?

Adverse employment actions are any materially adverse change in the terms and conditions of employment. These changes include job termination or constrictive job termination, job demotion, revocation of significant job responsibilities, increasing job duties to such a degree that your job becomes impossible to perform, cutting your pay or benefits, demotion, or transferring you to a less favorable or less prestigious position.

How Do I Show that I am Qualified for My Position?

You can prove you are qualified for your position if you can show that you possess the basic skills necessary for performance of the job, a lack of a disciplinary record, and a positive work performance history.

How Can I Prove an Inference of Discriminatory Intent?

An inference of discriminatory intent can be proven by showing that you were treated differently than other employees who are not members of the LGBTQ community.  Differential treatment includes your employer making negative or derogatory comments about your LGBTQ status, subjecting you to excessive discipline or increased scrutiny over your work performance, or your employer providing preferential treatment to individuals who are not members of the LGBTQ community. You can also prove that an inference of discriminatory intent exists by the timing of events leading up to the adverse employment action. For example, if you disclosed your status as a member of the LGBTQ community, and then were fired shortly afterwards, this quick turnaround would help establish an inference of discriminatory intent.

How are LGBTQ Claims Treated Differently Under Title VII and the NYSHRL and NYCHRL?

The New York State and City Human Rights Laws provide greater protections to employees than those granted under Title VII.

New York State Human Rights Law (NYSHRL) applies to all New York employers regardless of the number of employees they have. Employers with less than 15 employees are not subject to liability under Title VII.  New York State law also protects non-employees by extending LGBTQ discrimination protections to consultants, vendors, contractors, subcontractors or others providing services in the workplace.  Similarly, New York City Human Rights Law (NYCHRL) also extends LGBTQ discrimination protections to interns, freelancers, and independent contractors. However, employers with less than 4 employees are not subject to liability under New York City Human Rights Law (NYCHRL).

New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL) also protect employees from discrimination not only on their actual sexual orientation or gender identity and expression but also the employee’s perceived sexual orientation or gender identity and expression. This means that you are still protected under the law even if your employer discriminated against you due to a mistaken belief about your sexual orientation or gender identity.

Further, under the NYCHRL, you do not need to prove that you suffered a materially adverse change in the terms and conditions of your employment. You only need to prove that you were subject to an unfavorable change or treated less well than other employees on the basis of your status as LGBTQ to satisfy the “adverse employment action” element of your discrimination claim.

How do I Show that I Was Treated Differently than Someone who is Outside the Protected Class?

There are several ways to show you were treated differently than another employee who is outside of your protected class. Has your supervisor made negative comments about your LGBTQ status? Were you faced with harassment based on your LGBTQ status but other employees were not? Have you been subjected to excessive discipline or increased scrutiny over your work performance, while non-LGBTQ employees have not? Have other employees that are LGBTQ faced similar treatment in the past? These can all constitute evidence of disparate treatment. You can also use the timeline of events to your advantage. For example, if you disclosed your LGBTQ status and then you were fired a week later, this quick turnaround time helps establish LGBTQ discrimination.

You can also prove this element by showing that you were replaced by an employee that is not LGBTQ. This is only available if you were terminated and if your employer knew about your LGBTQ status before your termination.

Our New York City Employment Attorneys represent employees all over New York City, including Manhattan, Brooklyn, Queens, The Bronx, and Staten Island. Our central location in Manhattan makes it easy and convenient to represent employees everywhere in NYC. Call us today!

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