If you are a gay or lesbian employee, you may not feel comfortable coming out at work. You may be afraid that your employer will discriminate against you based on your sexual orientation. People across the country have been fired because of who they love. That may leave you wondering if there is any protection against sexual orientation discrimination for LGBT employees.
In this blog post, I will discuss the recent change in the Equal Employment Opportunity Commission's (EEOC) policy regarding sexual orientation and what it means for members of the LGBT community. I will explain how a few federal cases could result in stronger sexual orientation discrimination protection for gay and lesbian employees nationwide.
Title VII of the United States Civil Rights Act does not explicitly include sexual orientation as a protected trait like race or sex. Because of that fact, for years, courts and the EEOC held that your employer could fire you because you were gay, lesbian, or bisexual. In fact, many state civil rights statutes still work that way.
However, in recent years, the EEOC has changed its position. The law itself has not changed, but the EEOC has begun to interpret Title VII's prohibition against sex discrimination to include protections for employees discriminated against or harassed based on their sexual orientation.
The earliest protections against sex orientation discrimination date back to a U.S. Supreme Court case, Price Waterhouse v. Hopkins, in 1989. The case was based on sex stereotypes – that is, assumptions on how a person of a certain sex should dress or behave. The Court found that when sex stereotyping caused an employer to treat people of different genders differently, sex discrimination had occurred.
While that case did not explicitly speak out against same-sex harassment, a decade later, in Oncale v. Sundowner Offshore Services, the Supreme Court ruled that because Title VII prohibits discrimination based on sex, that must extend to sex-based discrimination of any kind, including same-sex behaviors. Similarly, a lower court has stated that negative comments about a lesbian's sex life were brought about by a gender stereotype that assumed men or women should only be attracted to persons of the opposite gender.
More recently, federal courts have begun to uphold employees right to be protected from discrimination based on sexual orientation. In 2014 a federal court struck down a state law prohibiting same-sex marriage law, calling it an unlawful discrimination based on sexual orientation. Some courts have explicitly said that sexual orientation discrimination is sex discrimination. Other courts have followed existing case law saying there is no Title VII sex discrimination claim for sexual orientation harassment, but have asked that the issue be addressed either at the Supreme Court or by the legislature.
In December 2012, the EEOC updated its Strategic Enforcement Plan (SEP) to include coverage of gay, lesbian, bisexual, and transgender individuals under Title VII's sex discrimination provisions. The EEOC is now actively pursuing lawsuits based on employers' illegal sexual orientation discrimination. The agency filed two separate federal lawsuits on March 1, 2016, both based on Title VII's protection against sex discrimination:
In EEOC v. Scott Medical Health Center, PC, the claim was that the complainant's superior knew he was gay and regularly used highly offensive anti-gay epithets, and vulgar language based on sex stereotypes. This amounted, in the EEOC's estimation, to sexual harassment contrary to Title VII.
In EEOC v. Pallet Companies d/b/a/ IFCO Systems NA, Inc, the EEOC filed suit because an employer terminated an employee for complaining about harassment based on her sexual orientation. Specifically, the EEOC said the employer discriminated against her, including making sexually suggestive gestures, based on the fact that the employee did not conform to stereotypical female gender norms.
While the question of whether a plaintiff can pursue a Title VII lawsuit is still up for debate in the federal courts, it is clear that wrongfully terminated employees and their attorneys can get help from the EEOC's regulatory process. In 2015, the EEOC received 1,412 claims of sexual orientation and gender identity discrimination - up over 25% from previous years. Through the claims process and voluntary agreements with employers, the agency awarded over $3 million to LGBT workers that year alone.
When your employer uses who you love as a weapon against you it can make every work day a nightmare. You shouldn't have to hide your spouse or partner just to keep your job. If you believe you have been the victim of sexual orientation discrimination or harassment, the employment discrimination attorneys at Eisenberg & Baum can help. We have years of experience dealing with sex discrimination claims, and we are committed to making our office a safe space for you and your loved ones. If you feel like your employer is using your sexual orientation against you, contact us. We'll meet with you and help create a strategy that protects you and your rights.