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Sexual Orientation Discrimination
Sexual orientation isn't a protected class under current federal law. 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. But there's a growing push on both the federal and state levels to provide protection from discrimination based on sexual orientation and to include the term "sexual orientation" in all legislation that prohibits discrimination. Related articles on Sexual Orientation Discrimination Legislative backgroundFourteen 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 Act 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 bill 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." Beware of creative attorneysWhile 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.
Related articles on Sexual Orientation Discrimination from the State Employment Law Letters
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