Is It Unlawful To Fire Employees On The Basis Of Perceived Sexual Orientation?

For more than two decades, our Marion County LGBT rights lawyers have fought for the rights of employment discrimination victims. Through their extensive experience litigating employment discrimination cases, our Ocala, Florida LGBT rights attorneys have learned that a common employment law myth is that employees have no protection from discrimination on the basis of perceived sexual orientation. In perpetuating this employment law myth, employers routinely argue that protection from discrimination under federal employment discrimination law does not apply to claims based on perceived sexual orientation. In other words, employers attempt to distinguish between claims of discrimination for “being perceived gay” and claims of discrimination for “being gay.” Thus, employers maintain that only employees who represent they are not heterosexual and thus claim discrimination on the basis of actual sexual orientation can bring a discrimination claim. In this article, our Marion County LGBT rights lawyers explain how the decision in Small v. New York City Department of Education,2023 WL 112546 (S.D. N.Y. Jan. 5, 2023) demonstrates that federal employment discrimination law protects employees from discrimination based on perceived sexual orientation.

LGBT Employment Protections

In Bostock v. Clayton County,  140 S.Ct. 1731 (2020), the U.S. Supreme Court for the first time addressed the issue of whether employers can lawfully terminate employees simply for being homosexual or transgender. In resolving that issue, the Supreme Court was required to determine whether discrimination on the basis of sexual orientation or transgender status is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 (Title VII). Title VII protects employees from discrimination on the basis of sex. Overruling decades of federal case law, the Bostockcourt ruled that discrimination against employees on the basis of sexual orientation or transgender status is a form of sex discrimination under Title VII. Under Title VII, therefore, it is unlawful for employers to discriminate against employees based on sexual orientation or transgender status.

LGBT Discrimination Lawsuit

In Small, a man named Small brought an employment discrimination lawsuit against his former employer, the New York City Department of Education (DOE), pursuant to Title VII. Small claims that the DOE fired him based on his perceived sexual orientation in violation of Title VII. In this lawsuit, Small never alleged that he is not heterosexual.

Small taught fourth grade. Small alleges that school administrators and other teachers perceived him as gay because he displays feminine qualities in the classroom and does not have a deep voice. Other teachers told Small that his sexuality was often discussed by teachers and administrators in the teacher’s lounge.

Starting in October 2019, Small claims that he was subjected to remarks reflecting anti-gay animus by a student in Small’s class. More than once, Small’s other students reported to him that the student, A.B., made discriminatory comments about Small based on his perceived sexual orientation. In January 22, 2020, A.B. allegedly threated Small by stating that “he would slap the gay out of [him].” Small reported this threat to the school’s principal, Paul, who allegedly did nothing to remedy the student’s behavior. Instead, Paul pulled Small into her office and told Small that he “was a problem.”

In January or February 2020, two parents of students informed Small that Paul was inquiring about him and that “she did like [him] because [he is] gay.” Around this time, A.B. allegedly hurled a homophobic racial slur at Small. Small reported this to Paul, who did not take any disciplinary action against the student.

On February 28, 2020, Paul placed Small on a teacher improvement plan. On April 20, 2020, Small’s employment was terminated. He was replaced by two teachers who, he alleges, are not perceived as gay because they are women who have children and are married to men.

Evidence Of Discriminatory Discharge

The DOE filed a motion with the trial court seeking dismissal of Small’s claim of discrimination based on his perceived sexual orientation. In denying the DOE’s motion for dismissal, the trial court determined that Title VII protected Small from discrimination based on his perceived sexual orientation. The trial court also determined that Small had alleged facts to create an inference that he was discriminated against because of his perceived sexual orientation. In support of its conclusion, the trial court pointed to Small’s allegation that Paul told two parents, in January or February 2020, that she did not like Small “because [he is] gay.” Thus, the trial court pointed out, Small proffered evidence that “Paul harbored anti-gay animus.” The trial court reasoned that “if, as Small [ ] alleges, Paul stated that she did not like Small because of his perceived sexual orientation, then a reasonable fact finder could find that Paul’s actions—including terminating Small, were taken at least in part for a discrimination reason.”

Free Consultation For LGBT Employees

One of the most important decisions sexual orientation discrimination victims must make is which employment law attorneys to consult with regarding their protection from discrimination based on sexual orientation under federal employment discrimination law. As part of our dedication to vindicating the rights of sexual orientation discrimination victims, an experienced employment law attorney will speak with you personally and you will receive the individualized attention your case deserves. We offer free confidential case evaluations for employees, and you will not have to pay to speak with our LGBT rights attorneys. We are available for consultation at your convenience, including scheduling telephone consultations for evenings and weekends.

Marion County, FL LGBT Rights Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our LGBT rights attorneys in Marion County, Florida have dedicated their practice to vindicating the rights of employment discrimination victims. If you have been discriminated against on the basis of sexual orientation or have questions about your rights as a sexual orientation discrimination victim, please contact our office for a free consultation with our LGBT lawyers in Marion County, Florida. Our employee rights law firm takes sexual orientation discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.