Sexual Orientation Discrimination and Employment
Currently, the legal protections against discrimination in the workplace based on sexual orientation are few. Many of the federal antidiscrimination laws that protect individuals from discrimination based on sex, race, national origin and religion have not been extended to sexual orientation. However, the 2003 US Supreme Court decision in Lawrence v. Texas may have opened the door for increased protections against sexual orientation discrimination in the public sphere, including at work.
Title VII, which provides for protection against discrimination based on race, color, national origin, sex or religion, has been found not to afford protection against discrimination based on sexual orientation. The protection against sex discrimination has been interpreted to mean against gender discrimination and not against sex-related behavior.
However, homosexuals and lesbians may be able to bring a cause of action for same-sex harassment under Title VII for quid pro quo and hostile work environment claims. These claims can be difficult to prove. If the employer harasses men and women equally, then courts have found the harassment is not based on sex, and thus, no Title VII claim exists. Additionally, if the harassment is based on a perceived belief by others that the individual is homosexual, then there may not be a Title VII claim.
The Americans with Disabilities Act (ADA) specifically precludes homosexuality, lesbianism, transsexualism and transgenderism as disabilities protected by the federal law.
Federal civil servants have some protections from sexual orientation discrimination based on an executive order signed by President Bill Clinton prohibiting this type of discrimination in employment decisions for federal civilian jobs. However, sexual orientation still may be considered as a factor prior to issuing security clearances for certain federal positions.
The Supreme Court’s decision in Lawrence v. Texas may eventually have implications for those seeking protection from sexual orientation discrimination at work. In the landmark decision, the majority found that individuals have a privacy interest via the Due Process Clause of the 14th Amendment in conducting consensual, private sexual relations. Other employment law cases challenging adverse employment decisions based on the conduct of employees once they leave the work place have been successful. The Lawrence decision eventually may serve as a basis for a similar claim based on the sexual activities of consenting adult employees at home.
Many states have amended their equal employment statutes to include the prohibition of discrimination based on sexual orientation. The coverage of these statutes varies, from covering only state and local government employees to also including private employees. In some states, the governors have issued executive orders that protect state government employees from sexual orientation discrimination. Some cities also have issued ordinances banning the practice to cover local and municipal employees as well as the private employers who contract with the city.
To learn more about the existence of these state law protections against sexual orientation discrimination, contact an experienced employment law attorney in your area. He or she can evaluate your specific situation and advise you on the types of legal relief that may be available to you.
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