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The Evolving Legal Landscape of Discrimination on the Basis of Sexual Orientation

In the United States, federal and state laws differ with respect to whether they explicitly prohibit discrimination in employment on the basis of sexual orientation. The state of New York has prohibited discrimination based on sexual orientation since 2003. But the federal law governing employment discrimination, Title VII of the Civil Rights Act of 1964, does not list sexual orientation as a protected class. This means that it is difficult for a plaintiff-employee to bring a claim under federal law arguing he or she was the victim of employment discrimination on the basis of being gay.

In March, the Second Circuit Court of Appeals addressed this issue in a case brought by a gay man who alleged that his supervisor had harassed him based on his sexual orientation and “effeminacy.” The plaintiff alleged that the harassment violated Title VII because it constituted discrimination based on sex, in that it resulted from gender stereotyping. In other words, he argued that the true reason his boss had harassed him was that he (the plaintiff) did not conform to his boss’s notions of how a man should be – e.g., masculine rather than effeminate, macho rather than submissive, etc. The court held that, because the plaintiff claimed that his supervisor perceived him as effeminate and submissive and harassed him for those reasons, his claim came within Title VII’s prohibition against sex discrimination.

Cases like this one, in which federal courts interpret Title VII in connection with sexual orientation discrimination, are notable since in many states there are no laws prohibiting discrimination on the basis of sexual orientation. In those states, plaintiff-employees claiming this type of discrimination have no alternative but to try to frame their case in terms that would implicate Title VII – even when this exercise feels like trying to fit a square peg into a round hole.

Employers in New York with four or more employees are bound by the state law mentioned above, and thus prohibited from discriminating based on sexual orientation.  A number of other states have similar laws, but they vary widely in scope and application. In all states, however, refraining from discrimination based on sexual orientation is, at the very least, the best practice. Employers should be proactive in diminishing their exposure to litigation by scheduling anti-harassment and anti-discrimination training for all supervisors and managers on a regular basis.  Companies should also have a well-written, zero tolerance policy in both their handbook and on company bulletin boards.

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PMP will continue to monitor this rapidly changing legal landscape. Should you have any questions about sexual orientation discrimination, please do not hesitate to contact one of our HR professionals. Please keep in mind that in addition to our staff of seasoned HR professionals, we also have experienced employment attorneys on-site to address any questions you may have regarding legal compliance.  Contact us at 800-921-2195 or 516-921-3400. You can also visit our website http://www.pmphr.com/ or e-mail us at info@pmpHR.com.

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