LGBTQ Microaggressions and Discrimination in the Workplace

Microaggressions are negative comments that play on stereotypes about a group of people. The speaker may not intend the comments in a hostile manner. But the remarks can still have a serious impact on the hearer's mental health. If not addressed, they can create a discriminatory and hostile work environment.

Workplace microaggressions target all minorities. Although it has been sixty years since the March on Selma, many still define "average" as white, cisgender, heterosexual, and male. People of color, women, lesbians, gays, and transgender individuals still face overt and covert discrimination.

This article reviews the legal options for LGBTQ+ people experiencing microaggressions and other forms of discrimination in the workplace. For more information about other types of workplace discrimination, visit FindLaw's Employment Discrimination Law page.

What Are Microaggressions?

Microaggressions are comments or acts that stem from stereotypes or preconceptions. They tend to invalidate the other person's experiences. Microaggressions are not always intentionally hurtful; in some cases, the speaker may be seeking information. However, unintentional microaggressions can be just as harmful as intentional ones.

Those in the LGBTQ+ community often experience microaggressions at work. Some examples of microaggressions toward LGBTQ+ people in the workplace include:

• Asking new coworkers if they have husbands or wives. The assumption is that everyone is heterosexual.
• Asking someone in an openly queer relationship if they are the "man" or the "woman." The assumption is that everyone follows traditional gender relationships.
• Misusing pronouns, deadnaming (using a transgender person's pre-transition name), or refusing to acknowledge gender diversity. This invalidates the transgender person's existence.
• Asking invasive personal questions about lifestyles, sex lives, surgeries, or bathroom habits. In general, people's private lives are nobody else's business.

Microaggressions can appear in different ways. Comments like, "that's so gay" might seem casual and irrelevant, but they are derogatory and hurtful for gay men and women. Requiring employees to follow gender-specific dress codes is harmless until it causes confusion and discomfort for nonbinary or transgender employees.

Microaggressions are pinpricks. One or two may not harm someone, but a lifetime of them affects the hearer's well-being. LGBTQ+ people suffer mental health issues, including depression, anxiety, and low self-esteem, at much higher rates than other groups.

Responding to Microaggressions in the Workplace

If you're the recipient of microaggressive behavior, only you can decide how to respond. There is no one "right" way to respond to a microaggression. The setting and situation dictate your best course of action. Your comfort level in confronting the speaker is also important. Below are a few ways you might respond:

Ask for clarification. If you're unsure what the speaker meant or if they realize what they said, ask for a restatement. This lets them rethink what they said and understand they misspoke without an actual confrontation.

Restate and explain. If you think the comment was unintentional, you can restate it and explain that it was inappropriate. Use this as a "teaching moment."

Set boundaries. Say that you're not comfortable discussing the topic and that you will not talk about it any further.

If you're not in a situation where you can discuss the statement immediately, discuss it later. If think you need backup, tell your manager or HR about what happened and ask if they can help you.

When You Witness Microaggression in the Workplace

Even if you're not the target of microaggressions, you can still support your LGBTQ+ coworkers. Like other forms of discrimination, microaggressions affect bystanders as well as targets. Gay, lesbian, bisexual, and transgender workers sometimes need help and validation on the job. Other employees can help by advocating for them.

If you want to be a good LGBTQ+ advocate in the workplace, take these steps:

Educate yourself first. Jumping in on behalf of someone else can be as heterosexist as the discrimination itself. Learn what kind of advocacy your coworkers need and how you can help.

Learn appropriate ways to intervene. When you see microaggressions in the workplace, it's important to handle them correctly. If you can tell someone, "We should be using preferred pronouns," without sounding like you're trying to be the next CEO, you should do so. However, if HR should handle the incident, make the referral instead.

Let coworkers know you are an ally. LGBTQ people need to know they can depend on you. Once your coworkers know you will support and validate their experience, they will turn to you when they need backup.

Legal Support for Dealing With Microaggressions in the Workplace

The Equal Employment Opportunity Commission (EEOC) protects against workplace discrimination. To file a complaint for a hostile work environment, the person experiencing discrimination (the "complainant") must show that the behavior was "so severe or frequent" that a reasonable person would find it harassing.

By themselves, microaggressions do not always rise to the level of discrimination.

For example, in Howard v. Blue Ridge Health Dist. (2023), the plaintiff could not provide examples of severe or frequent microaggressions rising to the level of harassment. The plaintiff alleged numerous incidents but provided only one specific example, and the court found this did not meet the EEOC and Title VII standards.

However, the EEOC language, "severe or frequent," gives individuals a legal way to use microaggressions to file an employment discrimination claim based on sexual orientation or gender identity. Even if the harassment does not rise to the level of "severe," microaggressions may satisfy the frequency requirement.

In De Souza v. Planned Parenthood Federation of America (2022), the plaintiff successfully argued that numerous emails and comments about her ethnicity met the standard of "lesser harassment over a long period of time."

The U.S. Supreme Court ruling in Bostock v. Clayton County extended Title VII of the Civil Rights Act of 1964 protections to LGBT employees. If you want to make an EEOC or Title VII complaint based on microaggressions, keep these details in mind:

• You must file your EEOC complaint within 180 days of the incident.
• You must have a complete record of the incidents. Details like what someone said or did and the date, time, and location of each incident are essential.
• Record your efforts to notify HR, management, or other personnel about the incident. Describe what happened and why you believe it did not work.
• Note any disparities between your treatment and that of others in similar situations.

Most case law involves racial or sexual harassment. However, many of these rulings still apply to sexual orientation and gender expression. If you have other questions or concerns, seek legal advice about your case.

Advice for Employers and Human Resources

Some states, such as California, mandate diversity training at least annually or biannually. Most workplaces require equal treatment for all employees. Yearly training sessions are often not enough to ensure employees understand how to avoid microaggressive behavior on the job and in everyday life.

Employers and human resource staff can find tips and training programs online and from LGBTQ+ organizations on ways to make their workplace more accepting of all employees.

Getting Legal Help

If you need guidance on what to do about microaggressions or other discriminatory behavior in your workplace, an employment lawyer or discrimination lawyer can help.