Editorial: Know your rights, San Diegans

By The Stanford Heisler Sharp firm

San Diego has been known for being forward-looking in LGBTQ activism. In 2021, San Diego became the fifth city in the United States to use gender-neutral language in city laws and policies. While the city provides a welcoming environment for the LGBTQ community, it remains crucial for LGBTQ employees and employers to be aware of their rights in the workplace.

According to San Diego County, as of 2020, about 230,000 individuals, or approximately 8.8%, identify as LGBTQ in San Diego County, a figure that is fairly representative of the number of California residents who identify as LGBTQ. Notably, a significantly higher percentage of the younger population, specifically 30% of adults under 25, identify as lesbian, gay, bisexual or queer.

Despite the Supreme Court’s decision in Bostock v. Clayton County affirming that Title VII protects employees from discrimination based on sexual orientation or gender identity, workplace discrimination remains widespread. The Williams Institute found that 45% of employees report having heard anti-LGBTQ remarks in the workplace, and 29.8% report not being hired or being fired due to their gender identity or sexual orientation at some point in their lives.

Protections for San Diego’s LGBTQ Employees

In San Diego, LGBTQ employees have several rights and protections available to them under federal and state law. On the federal level, San Diego residents can avail themselves of protections under Title VII against employment discrimination based on sexual orientation and gender identity. Current state law also renders it illegal to discriminate based on sexual orientation. Notably, according to the California Fair Employment and Housing Act (FEHA), it is illegal to discriminate based on actual or perceived sexual orientation, gender identity, and/or gender expression.

This protection can come in many forms. Employers may not prevent you from doing your job by harassing you based on your identity, especially through intimidation, development of a hostile work environment, and refusal to utilize your preferred pronouns. Employers may not request that an individual declare their sexual orientation, gender identity, or gender expression. You are also protected if you associate with LGBTQ individuals, via friendships, partnerships, or familial relationships. Ultimately, no employer in California may treat their employees less well because of their sexual orientation, gender identity, or gender expression.

As of 2017, California passed Senate Bill 396, which expanded training for supervisors on how to identify and prevent harassment based on gender identity, gender expression, and sexual orientation. Now, current state law requires that California employers of five or more individuals must provide harassment prevention training to all employees every two years, and that posters regarding these protections be displayed in a prominent and accessible location.

In addition to state law, the City of San Diego offers protection to employees of businesses that work with prospective and current government contractors. Specifically, Division 35, Article 2, of the Municipal Code confers the right to file an administrative complaint about the city’s prospective and current contractors if they engaged in unlawful discrimination against their subcontractors, vendors or suppliers, based on the latter’s employees’ or owners’ sexual orientation or other protected statuses.

Despite the strength of these laws, there are employment contexts to which they do not apply. For example, if you work for a religious entity or work at a company with very few employees, you may not be entitled to protections under federal or state anti-discrimination laws.

San Diego maintains progressive anti-discrimination protections in the U.S. for LGBTQ employees. Yet, LGBTQ discrimination can still occur despite these protections.

Knowing your rights as a San Diego resident, educating yourself and your peers, is the first step to combatting this issue.

–This article is authored by Sanford Heisler Sharp associate Ting Cheung, senior legal assistants Serena Bernal and Xan Wolstenholme-Britt, and legal intake and operations specialist Erin Simard. Sanford Heisler Sharp is a national civil rights and social justice law firm known for its experience in employment rights. Visit sanfordheisler.com to learn more. The authors can be reached at [email protected].

Editor’s note: This editorial is being provided as a public service to our readers. If you or your organization would like to share a public service editorial, please contact [email protected] to submit your content for review and consideration.

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