Even with President Obama’s recent endorsement of same-sex marriage, and multiple courts around the country finding the Defense of Marriage Act unconstitutional, many gay and lesbian workers still feel under fire. A recent article in the Los Angeles Times today demonstrates the discrimination many gay and lesbian workers continue to face in the workplace. The article profiled a high school water polo coach in Covina, California, just outside Los Angeles, who was fired for photos he had posted publicly on his social media networking accounts that showed him posing with drag queens at a party and jokingly playing with food while at a county fair with friends. It seems that after a person anonymously delivered printouts of the photos to administrators at the high school he worked at (and which his daughter also attends), he was fired. While terminating him, his supervisor, the principal of Covina’s Charter Oak High School, allegedly told him that employees at the high school were held to a “higher standard.” A higher standard indeed; after all, the photos had been posted years ago, before his employment at the school, and it took an anonymous tip for the school even to be aware of them. The fired coach immediately sued, alleging sexual orientation discrimination, and his case is now pending in the Los Angeles County Superior Court.
Even though gay rights and gay marriage are still hotly contested issues throughout the country, one thing should be clear to employers however: in California, sexual orientation discrimination is illegal and has been for years. Employers are not allowed to hold gay and lesbian workers to a “higher standard” than their other employees. While the federal government has never passed a law prohibiting discrimination by private employers based on sexual orientation, many states have. Currently 21 states and the District of Columbia prohibit sexual orientation discrimination, as do dozens of cities and counties around the country. California was one of the earliest states to prohibit discrimination based on sexual orientation, with the passage in 1992 of Labor Code Section 1102.1. Although the labor code was subsequently repealed, sexual orientation discrimination in the workplace continues to be prohibited under the California Fair Employment and Housing Act, Gov. Code §12940 et seq. Sexual orientation discrimination has also been prohibited by many cities and counties in California, including San Francisco.
What this means is that employment discrimination based on sexual orientation is just as illegal in California as discrimination based on sex, race, ethnic origin or religion. That means in a case like that of the water polo coach above, he only needs to show that he was treated differently than non-gay employees in the decision to terminate him. One way the coach can show that is by providing evidence that other employees who had acted similarly were not fired. For example, if other employees also had public photos on their social networking sites of them acting similarly, yet the school never terminated them, that would be strong evidence of illegal sexual orientation discrimination. Likewise, other evidence that gay or lesbian workers were disproportionately fired, like alleged in the article, would also help his case. Any evidence of harassment or stray comments indicating bias against gay or lesbian people would further strengthen his claim.