Sexual Orientation Discrimination in the Workplace

Additional HR Resources The Plus of "Us" DVD-based diversity training for employees and supervisors creates healthy workplace Diversity Training How to help create an organization that values diversity in its workforce Audit Your Policies Policies to prevent discrimination and other practices and procedures Workplace Discrimination Get clear guidance for assessing your policies and practices Preventing Sexual Harassment How to stop sexual harassment before it starts Training for Supervisors Train them to prevent, recognize, and stop sexual harassment Training for Employees How to train employees to prevent, recognize, and stop sexual harassment Supervisor Harassment Training How to help your supervisors avoid harassment suits and more State Requirements What your state lawmakers have to say on this issue Federal Laws and Regulations Advanced warning of new legislation and other federal developments Online Harassment Training Easily train supervisors using online modules (30-40 minutes each)

On June 24, 2009, Rep. Barney Frank (D-Massachusetts) introduced the Employment Non-discrimination Act of 2009 which would prohibit discrimination based on sexual orientation and gender identity. Currently sexual orientation isn't a protected class under current federal law but some states and municipalities do have laws prohibiting sexual orientation discrimination.

State-by-state comparison of 50 employment laws in 50 states, including sexual orientation discrimination

Related articles on Sexual Orientation Discrimination
Sexual Orientation Discrimination tools for Employment Law Letter subscribers

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. A federal law to add sexual orientation as a protected class is expected to be introduced and passed by Congress and signed by President Obama in 2009.

Legislative background
Twenty 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.

Free HR Hero White Paper: What’s Next? Seven Possible New Employment Laws HR Pros Should Know About

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."

Audio Conference: Same-Sex Marriages: Overcoming Policy, Benefit and Payroll Challenges

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.

View all HR topics

Related articles on Sexual Orientation Discrimination featured in HR Hero Line and the Employment Law Post

• Same-Sex Benefits: A Growing Issue under Obama
  (Diversity Insight, July 2009)
• Employment Non-Discrimination Act (ENDA) Introduced in Congress
  (Human Resources News, June 2009)
• Top Employment Issues for States in 2009 Part 2: Family and Medical Leave, Discrimination, Minimum Wage, and Safety
  (Employers State Law Alert, February 2009)
• Sexual Orientation Discrimination and the Employment Non-Discrimination Act
  (Michigan Employment Law Letter, January 2009)
• Five Changes to Look for from Obama and New Washington Leaders
  (California Employment Law Letter, November 2008)
  
• Same-Sex Marriage Rulings May Affect Employers in Other States
  (Employers State Law Alert, August 2008)
  
• Potential Changes in Labor and Employment Law after 2008 Elections
  (Indiana Employment Law Letter, June 2008)
  
• Are Same-Sex Couples Entitled to the Same Benefits as Other Married Workers?
  (Arkansas Employment Law Letter, February 2007)
  
• Second Generation Sex Discrimination Claims
  (Texas Employment Law Letter, June 2006)

HR Tools for Sexual Orientation Discrimination

• Sample Policy - Equal Employment
• Sample Policy - Harassment and/or Discrimination