While there currently is no federal law that explicitly provides protections against discrimination on the basis of sexual orientation in the workplace, and some states, including Pennsylvania, do not have such protections under state law, employers should be aware that the EEOC at present is reading Title VII’s prohibition against sex discrimination as extending to sexual orientation.
While it is not clear if other agencies or the courts will follow the interpretation of Title VII proffered by the EEOC as affording protection to employees against discrimination on the basis of sexual orientation, employers should be aware of this trend, and strongly consider taking action to address this issue.
In a case out of Florida, an employee of the Department of Transportation asserted that he was discriminated against because of his sexual orientation when he was denied a promotion. As evidence of discrimination, the employee pointed to statements made by his supervisor, who was involved in the decision about the promotion, including “[w]e don’t need to hear about that gay stuff” and a statement that the employee was a distraction in the workplace when he engaged in conversation and mentioned his male partner.
While Title VII does not mention sexual orientation discrimination and Congress has debated but failed to pass legislation that explicitly bars discrimination on the basis of sexual orientation, the EEOC found that discrimination on the basis of sexual orientation could be sex discrimination under Title VII. The EEOC’s rationale for this was based upon its conclusion that (1) such actions take gender into account when making employment decisions, (2) such actions are discriminatory based upon an employee’s gender association, and (3) they involve discrimination based upon gender stereotypes.
This new emphasis by the EEOC should be a warning to employers to ensure that employment decisions, including hiring, firing, discipline and promotions, are free of any indication that the same is influenced by an employee’s sexual orientation. In addition, employers should, if they have not already, be sure that harassment and other forms of discrimination based upon sexual orientation are addressed by respect in the workplace polices and trainings.
The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice Group. Jeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.
