General “harassment,” such as yelling, screaming, demeaning language, or unfair workload, is not “unlawful” if based merely on a personality conflict (contact me so that I can give you my red shoe example and clarify this point). Such conduct is only illegal if the harasser is motivated by an illegal prejudice such as a bias due to a person’s sexual orientation. This includes, but it not limited, anyone from the LGBT community, gay, lesbian, and transgender.

A discriminatory motive may be proven by showing that others of different sexual orientation were treated more favorably. Discriminatory motive may also be inferred from discriminatory remarks, stereotypes, racial joking, or slurs.

Also, harassment that is sufficiently severe or pervasive to alter the conditions of employment and create a hostile or abusive work environment is illegal. That means that isolated, infrequent, trivial, or merely offensive comments would usually not suffice. However, if the comments are severe enough, like egregious offensive comments relating to a person’s sexual orientation, they need not be as frequent. Also, if the discriminatory remarks are combined with frequent, general harassment, like yelling, screaming, or use of a demeaning or disrespectful tone, the combination may be sufficient to violate the law.

Since the conduct must be “unwelcome” to violate the law, a case is usually strongest where the employee has told the harasser to stop and also reported the conduct.

Reporting the conduct is particularly important where the harasser is a coworker rather than a supervisor. If the harassment is perpetrated by a mere coworker, you will usually need to show that a supervisory employee knew or should have known of the problem, but failed to take action to correct it. If the harasser is a supervisor, the employer will be liable for his conduct whether it knew about it or not. However, an employer that was unaware of supervisory harassment, and had promulgated and enforced effective anti-harassment policies, will likely avoid liability for punitive damages provided that it takes immediate and effective remedial action once it learns of the situation.

Because there is rarely “smoking gun” evidence of sexual orientation discrimination, circumstantial evidence will usually suffice. An inference of discrimination is usually raised by showing that the employee;

Belongs to a protected class (e.g., gay, lesbian, and transgender).
Was subjected to an adverse employment action (like termination, demotion, suspension).
Similarly situated employees outside the protected class were treated differently and more favorably.
In addition to raising an inference of discrimination in the manner set forth above, an employee may do so via statistical evidence, comparative evidence, or direct evidence. Direct evidence, such as discriminatory comments made by the decision maker, is often the most persuasive.

However, in larger companies, it may be possible to use statistical analysis to demonstrate that the employer systematically discriminates against a particular group of people in regards to sexual orientation in hiring, promotions, and terminations. Such evidence would raise an inference that the action taken against a particular employee was also infected by animus or prejudice. Comparative evidence also raises an inference of discrimination by showing that different rules and standards were applied for persons outside the protected class.

Because discrimination cases usually turn on specific facts, and there is usually a 1-year time limit for filing, it is important to consult with an attorney as soon as possible after a potentially discriminatory action has been taken.

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