With the passage of same-sex marriage in New York, many individuals are wondering what if any effect it will have on employers and their obligations to their employees. While there is currently no federal law in place to protect the rights of gay and lesbian workers, New York State has such a law. In 2003, the New York legislature introduced the Sexual Orientation Non-Discrimination Act (SONDA), to combat discrimination against gay individuals in the workplace.
SONDA was passed on January 16, 2003. The act “prohibits discrimination on the basis of actual or perceived sexual orientation in employment, housing, public accommodations, education, credit, and the exercise of civil rights.” Employees are protected against an employer’s discrimination whether or not the employer’s beliefs of the employee’s sexual orientation are true or false. For instance, if an employer in New York State discriminates against their employee because they believe they are gay, even if the employee is not, they are still granted protection under SONDA. SONDA specifically added “sexual orientation” to the already protected classes in New York, such as race, sex, and religion. Because of SONDA, sexual orientation has become a protected class under State law, Human Rights law, Civil Rights Law, and Education Law.
A New York employer cannot fire or withhold a hiring of an employee simply because of their sexual orientation. If an employee was terminated, discriminated against or harassed in any way at their employment based on their sexual orientation, they should contact the New York State Division of Human Rights or an attorney. Wronged employees can collect lost wages and benefits, as well as compensatory damages for their pain and suffering.
The one exemption under SONDA is when the discrimination comes from a “religious or denominational institution or an organization operated for charitable or educational purposes that is operated, supervised, or controlled by or in connection with a religious organization.” In these limited circumstances, if the employee has been wrongfully terminated or not given a job opportunity based on their sexual orientation, the employer is not liable if the action taken was based on religious principles. This exemption will not apply to public sector jobs or private for-profit companies.
On the federal level, the only protection against discrimination based on a person’s sexual orientation is given to employees who work for the government. Aside from these circumstances, there is no federal law currently in place protecting employees based on their sexual orientation. Being currently considered is the Employment Non-Discrimination Act (ENDA) of 2009. With ENDA’s passage, employers would be prohibited from discriminating against an employee based on their sexual orientation and gender identity. Additionally, ENDA would prohibit an employer from using a person’s sexual orientation or gender identity as a basis for hiring, firing, promotions, or compensation. Unfortunately, ENDA is still only being discussed and is not yet on the books. At this current time, there is still no federal level protection for employees who have been discriminated based on their sexual orientation in the workplace.
Although there is no federal level protection, employees who have been wronged based on their sexual orientation should still consider other avenues to pursue if such discrimination occurs. For example, employers can be liable for other employment and labor law theories such as defamation, wrongful termination, invasion of privacy, negligent infliction of emotional distress and sexual harassment. An employee who has been discriminated against based on their sexual orientation should not be discouraged with the lack of federal protection, but should rather contact an attorney and see what tools they do have at their disposal.
With the passage of the Marriage Equality Act in New York State, many of these discriminatory issues may come to light and have more presence in the future. Employees who have lacked the right to marry in the past now can, and should, be free to exercise that right without caveat and repercussion. If you have been discriminated against because of your sexual orientation, contact Valli Kane & Vagnini to see what your legal options and remedies are.