(Orinally published on VICE)
Peter Bryan Torres worked happily at a prominent New York City museum for ten years – one that you and your family have probably visited. But that all changed after a new boss came into the picture and found out Torres was HIV positive after an incident forced him to miss work and become hospitalized.
From then on, he says, it was slamming doors, banging cabinets, and dramatically inching up against the wall when Torres walked past to indicate that he was someone “at risk for infection.” All of this, in addition to making discriminatory comments. When Human Resources allegedly failed to look into and address the matter, he decided to take legal action. His lawyers at The Harman Firm LLP say that Torres’s lawsuit is, unfortunately, just one of many workplace discrimination cases they’re handling this year. One of the firm’s lawyers, Edgar Rivera, says that while our awareness of discrimination is, in general, much higher today than it was a few years ago, and young people especially are tuned in to pick up on unequal treatment.
The changing nature of the workplace and the continued struggle for people to hold onto the human and civil rights they’ve gained in recent years leads us to believe that we need more information on how to best navigate and protect our rights in the workplace, and how we can take action to address any sort of harassment or mistreatment on the premise of one’s sexual orientation or identity. There is no law prohibiting a person from having racist, sexist, homophobic, or otherwise bigoted opinions, and no law exists that requires an employee to believe that all people are equal or deserve equal rights, or to punish people for having prejudiced or backwards beliefs about racial minorities, women, people with disabilities, gay people, transgender people, or any other group that anti-discrimination statutes protect. “The law only prohibits an employer acting on those biases, whether in making employment decisions, for example, the decision to fire or demote an employee, or in their treatment of employees,” Rivera said. “In other words, as far as employment discrimination laws are concerned, people are legally free to be as racist, sexist, or homophobic as they want to be in their homes or elsewhere: they just can’t bring it into the office.” Jerame Davis, Executive Director of Pride at Work in Washington, DC. says that lawmakers often claim LGBTQ harassment and discrimination do not exist, because “so few people who are subject to these things end up speaking out.” In 1999, Davis says, he and two other men were fired for being gay, and happened to live in one of only four cities in Indiana at the time that had protections against LGBTQ discrimination. Due to state law, however, compliance was voluntary. There is no law prohibiting a person from having racist, sexist, homophobic, or otherwise bigoted opinions, and no law exists that requires an employee to believe that all people are equal or deserve equal rights.
“When the company refused to acknowledge our complaint, rather than walk away, we fought back. We waged one of the first online campaigns for social justice, which we won, becoming the first, and possibly still the only, LGBTQ discrimination case settled for a monetary award in the state of Indiana,” Davis said. However, the agreement they signed included what Davis calls a gag order that prevented them from discussing the case for years—ultimately, until the company went out of business. “The other thing that happens is that so many people just don’t want to talk about their experience. It’s usually embarrassing to folks to admit they were discriminated against or harassed. Not only do you have to come out as LGBTQ in a public fashion, but you may also have to admit you were fired from your job. That’s a tough hurdle for many people,” Davis said. For reasons like this one, Rivera advises that if you experience discrimination in the workplace, you bring it to your employer’s attention and take care of yourself by seeking professional help to treat mental and emotional wellness. “Just like after a car accident, the best advice is to seek treatment immediately. Experiencing discrimination and harassment is incredibly difficult; it can be extremely stressful, emotionally exhausting, and even traumatic,” he says, “You just don’t know how you may be affected until much later, and you can prevent a lot of harm by catching things early.” Even before that,though, he cautions people to read over their contracts carefully.
“People are always excited to start new jobs and often ignore the mountain of documents received during onboarding. They shouldn’t. These documents often include essential information about how to deal with discrimination and harassment.” Even in unionized workplaces with strong nondiscrimination and anti-harassment protections, LGBTQ discrimination still happens frequently; recently, the most pervasive issue his organization has been seeing is contention over bathroom access for those who are gender non-conforming. In fact, Davis says, only 19 states, the District of Columbia, and a number of cities and counties have put up protections for LGBTQ working people in place.
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“For some reason, there are a lot of people who are totally onboard with nondiscrimination in housing, employment, and even public accommodations, like being served at restaurants and retail stores, but when the question of bathroom access is brought up, they are adamantly opposed to protecting a person’s right to use the bathroom that best fits their gender identity,” Davis said. The other issue that is unfortunately prevalent, he says, is harassment in the form of anti-LGBTQ comments or “jokes” at the expense of queer folks, and inappropriate questions. “In many cases, even with employers who offer appropriate protections, managers will neglect to intervene when an LGBTQ employee is being harassed or bullied,” he said. “I would be wary working for any company in 2017 that doesn’t explicitly list sexual orientation and gender identity as protected classes.”
If you’re already actively working in a specific position, he says, be sure to document anything that doesn’t feel right, and do it in writing, with as much detail as you can – including with whom you’ve spoke, what the content and context of the conversation was, how you feel you were mistreated, the names of any witnesses, and, of course, time and date. “If an employee doesn’t complain about discrimination, then, as far as the employer is concerned, it isn’t happening. It’s amazing what people will conveniently manage to ‘forget’ about witnessing after a lawsuit is filed,” he said. “And while an employee might think that his or her coworkers will stand up and testify about discriminatory conduct, the fact is that many employees aren’t willing to risk their jobs by doing so and will simply say whatever their employer tells them to.” Despite how far we may have come, it seems that the times are indeed lending themselves to a backwards crawl into ignorance and intolerance, even in the most liberal of cities. Then, you must decide if and when the time is right to take action: next steps will depend greatly on state and local law, company policy, and any existing contract language. “If the situation progresses and management refuses to address the situation, you have very limited options going forward,” Davis says. “Once you speak up about a situation, you should be prepared to leave your position, either voluntarily or involuntarily. In cases of harassment, for example, it’s often the case that one party or the other separates from the employer. It’s not always the victim who gets to stay. However, sometimes, the situation you’re up against is affecting others in the workplace similarly.” Despite how far we may have come, it seems that the times are indeed lending themselves to a backwards crawl into ignorance and intolerance, even in the most liberal of cities.
Barbara Belmont , a volunteer at the National Organization of Gay and Lesbian Scientists and Technical Professionals in New York City, says that despite working in a state where it is illegal to discriminate against people for sexual orientation, gender identity, and gender expression, she has recently witnessed displays of hate. And even though harassment and bullying in the workplace is less common these days, she says many young people are still afraid to be “out” at work. “Well-intended people in positions of power have warned them to ‘be careful.’ I say, bring your whole true self to the table,” Belmont said. “Let your coming out happen organically or make an announcement, or find a way to come out in your job interview to test the water. If you don’t get hired because you are LGBTQ, did you really want to work there anyway?” Her best suggestion for protection is to use the Human Rights Campaign Corporate Equality Index to discover which of the larger companies have the best ratings, seek employment with companies with inclusive Equal Employment Opportunity policies, Employee Resource Groups for LGBTQ people, trans-inclusive insurance benefits, and a corporate culture committed to diversity and inclusion. Ultimately, Rivera says, if your employer doesn’t adequately address a complaint about discrimination, speak to a lawyer who specializes in plaintiff’s-side employment law; every case is different, so there is no one-size-fits-all solution: you have to obtain specific and personalized advice. “When someone is sick, they know that they should go to a doctor and that searching Google or WebMD isn’t going to accurately diagnose the problem. People should view getting legal advice in much the same way,” he said. “It’s not enough to talk to your aunt the divorce lawyer. Go speak to a lawyer who specializes in this work, the sooner the better. It’s amazing the amount of comfort you’ll get from a 30-minute consultation with a professional who is experienced in employment discrimination law.”