Most people believe that it is illegal in all states for employers to discriminate based on sexual orientation. That is not exactly true, but there are many laws that do protect employees from harassment or discrimination based on sexual orientation or gender identities. Where the confusion comes in is with state versus Federal laws, which employers are covered and what scenarios are covered. Here is a basic outline:
- Under Federal Law (Title VII) discrimination against anyone based on their sex or gender is prohibited. It is not strictly illegal to discriminate based on one’s status as gay, lesbian, bisexual or transgender. But, to the extent that those statuses affect sex or gender identity, then Title VII prohibits discriminatory conduct. Title VII applies to all private employers with fifteen or more employees.
- Thirty-two states have passed their own laws expressly prohibiting sexual orientation discrimination by government employers.
- Twenty-two states have passed their own laws expressly making sexual orientation discrimination illegal by private employers (this is on top of Title VII’s various applications). These laws are more explicit and may apply to smaller businesses. For example, in California, any business with five or more employees may not discriminate based on sexual orientation.
- Religious organizations continue to be exempt from sexual orientation discrimination laws, but non-profits are not exempt under any of the laws.
Confusion is also caused by language. Sex and gender discrimination are not precisely sexual orientation discrimination. By definition, sex discrimination is discrimination based on an individual’s biological identity as male or female. Gender discrimination is discrimination based on characteristics of an individual that are culturally associated with “masculinity” or “femininity.” Sexual Orientation discrimination is based on the characteristics of being gay, lesbian, bisexual, transgender or transsexual. Gender discrimination can occur when persons who are transgender, transsexual, or consider themselves some other gender altogether, suffer hostile work environment or adverse actions related to their gender. Sex discrimination can occur when a gay man or a lesbian woman is subject to harassment because of their failure to adhere to traditional sex roles or when they are sexually harassed.
A few examples of possible sexual orientation discrimination include:
- An employer refuses to interview or hire a potential employee because he or she is openly gay.
- An employer passes on a homosexual male employee for a promotion that he is as qualified for as another heterosexual employee, because he is homosexual.
- A sales manager has a dinner party, including spouses, at his house and invites everyone on his sales team, except for a female co-worker, because she has a same-sex partner.
- A male employee was laid off due to wearing female clothing to work, even though he identifies as a woman.
- A gay man is teased by co-workers and the butt of sexual jokes based on his effeminate personal traits.
- A gay man is fired for adopting a child with his partner.
LGBT intolerance and discrimination is quickly becoming outmoded and socially unacceptable in the Western world. The laws on gay marriage are already at a tipping point, which means that it will be recognized everywhere soon (which affects employer-provided benefits). Sexual orientation discrimination is becoming expressly illegal, to keep up with popular beliefs as well as practical legal applications of already existing laws. The point is: employers must make sure that they adapt their anti-discrimination safeguards to protect against sexual orientation discrimination in hiring, firing, promotion, pay, benefits and social work environment. Anything less is bad business and risky.
To schedule a consultation with the employment law attorneys of Bellatrix PC, call (800) 449-8992.