Do you identify as lesbian, gay, bisexual, transgender, intersex, queer/questioning, or asexual (LGBTIQA+)? Has Amazon discriminated against you because of your sexual orientation or gender identity? Have you been treated worse than other employees with a different sexual identity or gender identity?

If so, here’s what you need to know.

Discrimination or harassment based on sexual orientation or gender identity

Sexual orientation and gender identity discrimination in the workplace means being treated worse than other employees or job applicants because of your actual or perceived sexual orientation or gender identity. Federal law and some state laws prohibit this kind of discrimination when it comes to any aspect of employment for a covered employer. Amazon is a covered employer.

The Supreme Court Rules 

Recently, in Bostock v. Clayton County, Georgia, No. 17-1618 (S. Ct. June 15, 2020), the United States Supreme Court held that firing individuals because of their sexual orientation or transgender status violates Title VII’s prohibition on discrimination because of sex. Title VII of the Civil Rights Act of 1964 is codified as Subchapter VI of Chapter 21 of title 42 of the United States Code.

The Court reached its holding in Bostock by focusing on the plain text of Title VII, which prohibits discrimination by covered employees on the basis of sex. As the Court explained, “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” For example, if an employer fires an employee because she is a woman who is married to a woman, but would not do the same to a man married to a woman, the employer is taking an action because of the employee’s sex because the action would not have taken place but for the employee being a woman. Similarly, if an employer fires an employee because that person was identified as male at birth but uses feminine pronouns and identifies as a female, the employer is taking action against the individual because of sex since the action would not have been taken but for the fact the employee was originally identified as male.  

This landmark ruling clarified the state of federal law. Before the Supreme Court ruled on the issue, federal law on sexual orientation discrimination was unclear. The federal Equal Employment Opportunity Commission (EEOC), which enforces federal anti-discrimination laws involving employment, took the position that sexual orientation discrimination was unlawful sex discrimination under Title VII. However, the US Department of Justice took the opposite view on whether sexual orientation was included under Title VII, and federal courts were divided on the issue, which is why the issue went to the Supreme Court.

As NPR reported regarding the facts presented to the Supreme Court:

Two involved employees sued after contending they had been fired because they were gay. One of them, Gerald Bostock, won awards for his work as a child welfare coordinator for Clayton County, Ga, but said he was fired after he joined a gay recreational softball league. As he told NPR in October, “Within months, I was fired for being gay. I lost my livelihood. I lost my medical insurance, and I was recovering from prostate cancer at the time. It was devastating.” The second case involved Donald Zarda, a now-deceased skydiving instructor who was gay.

As NBC News reported,

In 2010, while working as a skydiving instructor at Altitude Express in New York, Zarda told a female student that he was gay. According to legal documents, he often informed his female clients of his sexual orientation to “mitigate any awkwardness that might arise from the fact that he was strapped tightly” to them during a tandem skydive. … The woman informed her boyfriend about Zarda’s comment, and her boyfriend in turn complained to Altitude Express, which promptly fired Zarda.”

The third case before the Supreme Court, as NPR reported, 

 …was brought by Aimee Stephens, who had worked for six years as a male funeral director in Livonia, Mich., but was fired two weeks after she told her boss that she was transgender and would be coming to work as a woman. She died earlier this year, but her case lived on.

The Supreme Court ruled that such firings were illegal.

What does Title VII prohibit?

Title VII of the Civil Rights Act of 1964 prohibits discrimination by covered employers on the basis of race, color, religion, sex, or national origin (see 42 U.S.C. § 2000e-2). Title VII applies to and covers an employer “who has fifteen (15) or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year” as written in the Definitions section under 42 U.S.C. §2000e(b). Title VII also prohibits discrimination against an individual because of their association with another individual of a particular race, color, religion, sex, or national origin, such as by an interracial marriage. The EEO Title VII has also been supplemented with legislation prohibiting pregnancy, age, and disability discrimination.

Thus, Title VII applies to private-sector employers with 15 or more employees, to state and local government employers with 15 or more employees, and to the federal government as an employer. It clearly applies to a giant company like Amazon, with more than 1.3 million employees.

Under Title VII, according to the EEOC, covered employers can’t discriminate against people based on their sexual orientation or gender identity with respect to:

• hiring
• firing, furloughs, or reductions in force
• promotions
• demotions
• discipline
• training
• work assignments
• pay, overtime, or other compensation
• fringe benefits
• other terms, conditions, and privileges of employment.

What’s harassment?

The law also prohibits workplace harassment that creates a hostile work environment based on sexual orientation or gender identity, including offensive or derogatory remarks about sexual orientation (e.g., being gay or straight) or gender identity (e.g., a person’s transgender status or gender transition). Illegal harassment is either severe, such as sexual assault, or pervasive, such as a steady stream of offensive remarks, or a combination of the two.

However, not every form of unwelcome contact qualifies as harassment. For example, the following types of things would probably not be considered harassment:

• One joke or rude remark
• Complimenting someone on their appearance, especially if the focus is on what they’re wearing or a new haircut rather than their body

• Consensual behavior 
• Yelling (if the boss yells at everyone)

Harassment becomes illegal (according to the EEOC) when:

• enduring the offensive conduct becomes a condition of continued employment, or 
• the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.An employer can be responsible for harassment by a client, customer, vendor, or other third-party if the employee reports such harassment and the employer fails to take steps to prevent it from happening again. 

State Laws on Sexual Orientation Discrimination

A number of states include both gender identity and sexual orientation as protected classes in their employment discrimination laws. Other states include only sexual orientation but not gender identity. In 27 states, there are no explicit statewide laws at all protecting people from discrimination on the basis of sexual orientation or gender identity in employment. Thus, employees who feel they’ve been discriminated against in the workplace on the grounds of sexual/gender identity or orientation may be able to choose whether to file suit under state or federal law, or they may have to file under federal law, depending on the applicable state las. 

Discrimination based on sexual orientation or gender identity at Amazon

The Guardian recently reported how Cindy Warner, a tech executive with 30 years of experience, sued Amazon Web Services (AWS) a little more than a year after joining the company, saying she had faced pay discrimination, sexism, and homophobia. Warner, who is gay, accused a manager of making homophobic comments and says she was fired in retaliation after hiring  lawyer to pursue legal claims. 

The Washington Post reported that Amazon had opened an investigation of discrimination after hundreds of employees signed a petition in the wake of Warner’s lawsuit. The petition also mentioned a LinkedIn post by Laudon Williams, a former Amazon employee, who wrote that he left the company because of concerns about gender and sexual-orientation discrimination, including a manager using homophobic language.

As NBC News reported, a transgender man in New Jersey sued Amazon claimed he was harassed and denied a promotion after telling his boss he was pregnant. 

What should you do if you feel you’ve been the victim of discrimination at Amazon?

If feel you’ve been the victim of sexual orientation discrimination at Amazon, call attorney Cj Rosenbaum at 212-256-1109, text 212-256-8492, or email CJ@AmazonSellersLawyer.com. You can also submit a summary of your situation online. 

It’s important not to delay. If you want to sue Amazon, you may first need to file a charge of discrimination with the EEOC or the fair employment practices agency for your state. You may need to do this within 180 days after the last act of discrimination or harassment took place to preserve your right to sue.