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Same-Sex and LGBTQ+ Sexual Harassment: Your Rights at Work

Two persistent myths keep people from recognising a valid claim. The first is that sexual harassment only happens between people of different sexes. The second is that it requires sexual attraction. Neither is the law.

Same-Sex Harassment Is Covered

The Supreme Court settled this in Oncale v. Sundowner Offshore Services. A male oil rig worker was harassed by male colleagues, and the Court held unanimously that Title VII covers harassment between members of the same sex.

The Court made a second point that matters just as much: the conduct does not have to be motivated by sexual desire. What the statute requires is that you were subjected to disadvantageous terms or conditions because of your sex. Harassment driven by hostility, by policing how a man or woman is supposed to behave, or by general contempt can all qualify.

Sexual Orientation and Gender Identity

In Bostock v. Clayton County, the Supreme Court held that firing someone for being gay or transgender is discrimination because of sex under Title VII. It is impossible, the Court reasoned, to discriminate against a person for being homosexual or transgender without taking their sex into account.

Bostock addressed termination directly, and its reasoning applies to harassment claims under the same statute.

How the Conduct Usually Looks

Sexual comments, propositions, or touching by someone of the same sex
Harassment for not conforming to expectations about how a man or woman should look, speak, or behave
Deliberate and repeated misgendering, or refusal to use a colleague’s name
Questions or comments about a person’s body, transition, or private life
Outing someone, or threatening to
Hazing and initiation rituals with sexual content, common in male-dominated workplaces
Slurs framed as banter or team culture

State Protections Vary Considerably

New York

The State Human Rights Law expressly protects sexual orientation and, following the Gender Expression Non-Discrimination Act, gender identity and expression. The New York City Human Rights Law is broader still and applies a treated less well standard, with guidance addressing pronoun use and name policies.

New Jersey

The Law Against Discrimination expressly protects affectional or sexual orientation and gender identity or expression, applies to employers of any size, and allows individual liability against harassers on an aiding and abetting theory.

Florida

The Florida Civil Rights Act does not expressly list sexual orientation or gender identity among its protected categories. Florida employees generally rely on Title VII as interpreted in Bostock, and in some areas on local ordinances that provide express protection. This makes the choice of statute particularly important in Florida cases.

The Practical Difficulty

Same-sex harassment is often dismissed as horseplay, banter, or team culture, especially in workplaces where it has been normalised for years. That framing is not a legal defense. The question is whether the conduct was unwelcome and whether it happened because of sex, not whether other people found it funny.

Conclusion

If you have been harassed by someone of the same sex, or targeted because of your sexual orientation or gender identity, you are protected. The law reached this position through Oncale and Bostock, and New York and New Jersey went further on their own. Do not let the framing of banter or culture persuade you that what happened does not count.

At John J. Zidziunas & Associates, LLC, our employment lawyers represent workers subjected to sexual harassment and discrimination across New York, New Jersey, and Florida. To discuss your situation confidentially, call us at (212) 516-1868 or contact us here. We represent employees on a contingency fee basis with free consultations.

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