Sexual Orientation Discrimination
State and federal laws – including Title VII of the Civil Rights Act of 1964 (Title VII) – prohibit discrimination in employment decisions like hiring and firing based on race, religion, color, sex, and national origin. While Title VII doesn’t list sexual orientation as a protected class, an increasing number of local and state governments are passing laws and ordinances that protect homosexuals from workplace discrimination and harassment. Title VII doesn’t forbid discrimination or harassment because of sexual orientation, but your company policy or local ordinance may.
Employment Non-Discrimination Act
A number of states and the District of Columbia have already passed legislation prohibiting discrimination based on sexual orientation. With bipartisan support, the Employment Non-Discrimination Act (ENDA) has been introduced in Congress to broaden federal employment discrimination protections to include a ban on discrimination based on sexual orientation and gender identity. The bill would prohibit employers from making decisions about hiring, firing, promoting or compensating an employee based on sexual orientation or gender identity.
The ENDA also prohibits preferential treatment of gay, lesbian, bisexual, and transgendered employees as well as using quotas requiring an employer to hire a certain number of such employees. It states that lawsuits filed under the ENDA can’t be based on statistics about the sexual orientation or gender identity of employees. In addition, no employer is required to provide domestic partner benefits under ENDA, and the armed forces and religious organizations are exempt from the bill’s requirements, as are employers hiring based on veteran preference.
Proponents of the ENDA said similar measures have been tried in a number of states and worked well without causing problems. Labor, business groups, and gay rights groups generally support the measure.
The Business Coalition for Workplace Fairness, a group of 20 companies, including Coca-Cola, Microsoft, General Mills, and Hewlett-Packard, gave its support, stating: “Having a corporate culture that embraces diversity improves the productivity of our associates, helps the company recruit the best talent, and makes us more productive.”
State-by-state comparison of 50 employment laws in 50 states, including sexual orientation discrimination
Sexual orientation harassment
While Title VII doesn’t protect employees from discrimination based on sexual orientation, it does protect them from same-sex harassment. The distinction between the two types of conduct has caused confusion; however, the case law has provided illustrations of actionable same-sex harassment claims:
- An employee can offer credible evidence that the harasser was actually motivated by sexual desire toward members of his own gender.
- An employee can offer proof of gender-specific statements from which an inference can be drawn that the harasser is motivated by general hostility to the presence of members of the same sex in the workplace.
- An employee can offer comparative evidence showing differences in how the harasser treated members of both sexes in the workplace.
- An employee can establish that the harassment was based on perceived nonconformance with gender-based stereotypes.
These examples demonstrate that even though Title VII doesn’t prohibit discrimination based on sexual orientation, harassment based on sexual orientation may be evidence of same-sex discrimination. It must be stressed, however, that even though discrimination based on sexual orientation doesn’t violate Title VII, distinguishing between same-sex harassment and sexual orientation harassment is generally difficult.
HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including overtime and FLSA requirements
Beware of creative attorneys
While federal and some states’ discrimination laws don’t prohibit discrimination on the basis of sexual orientation, that doesn’t mean that you shouldn’t be concerned with those types of discrimination issues.
Some courts have held that “gender stereotyping” (e.g., requiring certain styles of dress for men and women) can be the basis for a gender-bias lawsuit. Creative lawyers often try to file sexual orientation discrimination claims under a gender discrimination theory. A number of those kinds of cases have arisen when an employee has gone through a sex change or attempted to live as a member of the opposite sex.
Some employers voluntarily prohibit sexual orientation discrimination in their company policies. Some do so because they operate in states that prohibit it and want one set of policies for all workers. For those employers, even if employees may not have a statutory right not to be discriminated against on the basis of their sexual orientation, they could file a claim if the company doesn’t follow its own written policy.