This article is co-authored by partner Andrew Adelman and JGL law clerk Samantha Gordon.
Harassment remains a prevalent issue that prevents individuals from expressing themselves freely in the workplace, and this is especially true for LGBTQ+ workers.
Under federal law, proving harassment (referred to as a hostile work environment) requires an employee to demonstrate that the conduct is “severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.” Whether a work environment is hostile depends on the totality of the circumstances, including the frequency of the conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with an employee’s work performance.
While many state laws follow this federal standard, others are broader and some define harassment as including a greater swath of conduct than might be covered under federal law. For example, D.C. law defines harassment as conduct that has the “effect of creating an intimidating, hostile, or offensive work environment,” and Montgomery County law explicitly states that conduct need not be considered severe or pervasive. The laws in both D.C. and Montgomery County expressly direct courts to consider certain factors, including some of those discussed above, when determining whether conduct amounts to harassment.
Conduct that Might Constitute Workplace Harassment for LGBTQ+ Workers
LGBTQ+ workers may face unique hostility that is more directly linked to their sexual orientation or gender identity. In certain situations, this conduct may amount to a hostile work environment, depending on the totality of the circumstances, such as the frequency, duration, or severity of the conduct. Examples of problematic behavior that – alone or in combination – may contribute to a hostile work environment include:
- Homophobic or transphobic slurs
- Comments about being “too masculine” or “too feminine”
- Comments or questions about your body, e.g., the size of your chest, your hair or hairstyle, or references to whether you have certain anatomical features as a transgender person
- Derogatory jokes or comments relating to your sexual orientation or gender identity, e.g., being told your identity is a choice, that you are normal for a queer person, or that you are harming your kids by not having a traditional family
- Use of stereotypes or crude or derogatory statements, e.g., being called a pedophile or sex worker/prostitute
- Repeated and/or intentional use of the wrong name, pronouns, or honorifics
- Prohibitions on bathroom use
- Exclusion from social gatherings
- Being told to keep your identity to yourself or being made to feel that you will be treated differently if you present yourself authentically
- Questions about your personal life, including your dating or sexual history
Not all offensive or abusive conduct needs to be directly about your sexual orientation or gender identity to contribute to a hostile work environment, and LGBTQ+ workers can demonstrate harassment if they are treated worse than co-workers, e.g., generally hostile or negative comments, unfair distribution of work, exclusion or isolation, etc. If the difference in treatment is because you are LGBTQ+, then you may have a claim for a discriminatory hostile work environment.
