Sexual Orientation Harassment

While Title VII of the Civil Rights Act of 1964 (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.

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So while a gay man cannot sue his employer under federal law for sexual orientation harassment, in many places, he may be able to sue under a different law. Some employees, however, may get around this loophole by filing suit under Title VII and labeling it same-sex harassment rather than alleging 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.

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Related articles on Sexual Orientation Harassment from the State Employment Law Letters
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HR Tools for Sexual Orientation Harassment

• HR Executive Special Report - Recognizing & Responding to Workplace Discrimination
  (available for purchase by nonsubscribers)
• HR Executive Special Report - Workplace Harassment Guide: Avoiding the Avalanche Zone
  (available for purchase by nonsubscribers)
• HR Executive Special Report - Stop It Before It Starts: The HR Manager's Guide to Preventing Sexual Harassment
  (available for purchase by nonsubscribers)