By: Ting Cheung, Xan Wolstenholme-Britt, Neha Sharma, Mary Duggan, and Erin Simard
What is “Outing”?
“Outing” refers to the act of disclosing someone’s lesbian, gay, bisexual, transgender, or gender non-binary identity without their consent. For many LGBTQ+ and queer employees in America, keeping their gender identity and sexuality a secret from their employers is a critical survival mechanism. The Harvard Business Review conducted a study that found that in the United States, only 29 percent of Transgender and Gender Non-Conforming (TGNC) employees were out in the workplace.
Can Being Outed at Work Create an Illegally Hostile Work Environment?
Being out in the workplace can generally have negative consequences for LGBTQ+ and queer employees, even if they have willingly outed themselves. The Williams Institute at UCLA found that 46% of LGBT workers have experienced unfair treatment at work during their lifetimes, and that 38% of LGBT employees reported experiencing harassment at work. So, what happens if you are outed at work?
Luckily, there are state and federal laws that prohibit discrimination in the workplace based on LGBTQ+ status. Firstly, in some states, employees may have protections under state law, such as in California under the Fair Employment and Housing Act or under the New York City Human Rights Law.
Additionally, the Fourteenth Amendment prohibits all government agencies, including states, from discriminating against or denying government employees equal protections and services.
Finally, Title VII of the Civil Rights Act of 1964 prohibits discrimination by both public and private employers based on race, religion, sex, and national origin. In Bostock v. Clayton County (2020), the Supreme Court held that discrimination against an employee based on their sexuality or gender identity is considered unlawful under Title VII. Because of how recent the Bostock decision is, this area of law remains undeveloped and has not specifically addressed “outing” in the context of discrimination law.
However, though this legal theory remains untested, outing in the workplace may lead to the creation of an illegal hostile work environment under Title VII as interpreted in Bostock.
Hostile work environment harassment occurs when:
- conduct is unwelcome
- tied to a protected class status
- attributable to the employer,
- deemed severe or pervasive enough to create an abusive atmosphere.
The “severe or pervasive” standard is applied in a disjunctive manner, meaning conduct can be either severe or pervasive, not necessarily both. Even a single severe incident can meet this standard, or less severe conduct may meet the standard if it is pervasive. Courts assess the totality of circumstances, considering frequency, severity, and interference with work performance.
Being outed at work may constitute severe harassment due to various factors. Firstly, the psychological impact of being outed can be profound and the disruption may extend beyond the workplace, affecting the individual’s personal life and relationships. Furthermore, being outed may pose safety concerns, particularly in environments where LGBTQ+ individuals face hostility or violence. Alternatively, repeatedly and intentionally outing someone at work over an extended period may constitute illegal pervasive harassment under Title VII. However, as previously mentioned, this legal theory has yet to be tested.
Questions You May Have If You Have Been Outed
What if your employer discriminated against you after you were outed?
While the experience of being outed may be illegal, discriminating against an employee for their sexual orientation or gender identity is certainly illegal under Title VII, as affirmed in Bostock. Moreover, if an employer retaliates against you for reporting that you have been discriminated against for your now-known sexual orientation, this may be considered unlawful retaliation under Title VII.
Lastly, in Burlington Industries, Inc. v. Ellerth (1998) and Faragher v. City of Boca Raton (1998), the Supreme Court decided that companies are automatically liable if an employee’s superior discriminated against them resulting in economic harm such as being fired, demoted, losing wages, and being assigned fewer hours or undesirable/menial work assignments. If, however, an employee was not economically harmed, then employers can escape automatic liability if they can prove that (a) they exercised reasonable care to prevent and promptly corrected any discriminatory behavior, AND (b) the employee did not report the behavior or take advantage of other corrective/grievance programs.
What if you were outed at work, faced discrimination, and your boss did nothing despite being aware?
According to the EEOC, “the employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.”
This means that employers are responsible for addressing harassment by individuals they oversee or can control, such as contractors or customers, if they were aware or should have been aware of the harassment and did not take timely and suitable measures to address it.
What happens if your company took action, but it was insufficient?
“Title VII requires a reasonably prompt corrective response, not a perfect response,” so an employer’s response is inadequate if it shows indifference or is not reasonably calculated to promptly end the harassment (Burns v. Berry Global, Inc., Court of Appeals, 6th Circuit 2022). For example, the Supreme Court decided in Faragher that the City of Boca Raton did not exercise reasonable and prompt care because the City did not circulate its sexual harassment policy to all city employees, track instances of harassment, nor did the City create reporting methods for employees to bypass their supervisors.
Takeaways
Taking Positive Steps Forward After Being Outed
Being outed at work can be incredibly stressful and scary, especially in environments that may not be inclusive towards LGBTQ individuals. In the event that you are outed, beyond relying on potential legal protections, there are proactive measures you can take to protect yourself.
Foremost, prioritizing your mental health is crucial. The emotional impact of an outing varies from person to person and is influenced by environmental factors. If you find that being outed is adversely affecting your mental and emotional health, seeking support from a therapist or mental health professional is a vital step to ensure your personal well-being. Moreover, identifying and connecting with allies or friends can prove invaluable. Having a support network can contribute significantly to navigating the challenges that may arise from being outed. Finally, if you feel comfortable, consider reporting the outing or any negative repercussions to human resources (HR). Although not everyone may be comfortable turning to HR, reporting the incident alerts the company to potentially discriminatory conduct and may compel them to take corrective action. This is particularly crucial in cases where the outing was intentional, malicious, or if you are facing adverse employment consequences. Reporting the incident to HR can be a pivotal tool in addressing and rectifying the situation.