HR Support with Sexual Orientation Harassment in the Workplace

Editor's Note: Prevent and respond to instances of harassment based on sexual orientation.

Beth P. Zoller Overview: Employers need to know how to identify and respond to harassment based on sexual orientation. Although it is not explicitly protected under Title VII, it is advisable for employers to treat sexual orientation as a protected class. Further, many state and local laws do treated sexual orientation and gender identity as protected classes.Sexual orientation discrimination can involve the use of offensive names such as "fag", "fairy" or "dyke" as well as the use of stereotypes regarding gays, lesbians and transgender persons.

In order to eliminate sexual orientation discrimination, employers should have a policy prohibiting harassment against individuals based on sexual orientation or gender identity. Employers should also have a multichannel systems in place so that employees can bring complaints of harassment based on sexual orientation. Further, employers should immediately respond to such complaints and institute corrective action if needed. Employers should provide employees and supervisors with training to be sensitive to sexual orientation and gender identity in order to create a tolerant workforce.

Trends: Employers should be aware that the Employment Non-Discrimination Act is pending in the US Congress. It would explicitly protect individuals from employee discrimination and harassment based on sexual orientation and gender identity. However, employers should be aware that a handful of state and local laws already provide such protection. Employees should be conscious of continuing developments in this rapidly changing area of federal and state law.

In Vance v. Ball State University, 570 U.S. (2013), the Supreme Court issued a critical decision which makes it more difficult for employees to prove that an employer is vicariously liable for a supervisor’s discriminatory or harassing conduct. Specifically, the Court held that a supervisor must be someone with the direct power and authority to take tangible employment actions against an employee. This issue is of primary importance when determining whether an employer is vicariously liable for a supervisor's actions in cases of harassment. Under the current law, if the harasser is a supervisor, the employer is automatically vicariously liable for the supervisor's actions. If the harasser is not a supervisor, the plaintiff must prove that the employer was negligent and that the employer knew or should have known of the harassment in order to be liable. This is a much higher burden to meet.

Author: Beth Zoller, JD, Legal Editor

Latest items in Sexual Orientation Harassment

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    Date:
    15 June 2015
    Type:
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    Type:
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    Federal and state laws protect employees from discrimination based on sexual orientation. This How To helps employers recognize potential discrimination issues, protect employees from sexual orientation discrimination and protect themselves from litigation.

  • Understanding Sexual Orientation and Gender Identity Issues in the Workplace - Supervisor Briefing

    Type:
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    This briefing for supervisors examines the law and best practices for understanding issues with respect to lesbian, gay, bisexual and transgender (LGBT) individuals in the workplace, including frequently used terms, preventing and responding to incidents of harassment and discrimination, and handling sensitive issues such as dress codes, restrooms and transitioning employees.

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    Date:
    10 March 2014
    Type:
    News

    The EEOC recently entered into a consent decree with Roy Farms Inc. in which the employer agreed to pay $85,000 to settle a same-sex harassment lawsuit. This type of settlement should alert an employer that although sexual orientation is not a protected class under federal law, same-sex harassment and gender stereotyping violate federal civil rights laws.

  • EEOC Announces End to Boh Bros. Construction Co. Lawsuit

    Date:
    10 March 2014
    Type:
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    The EEOC entered into a consent judgment with Boh Bros. Construction Co., in which the employer agreed to pay $125,000 to settle a same-sex harassment case that has bounced from the trial court to the 5th Circuit Court of Appeals and back.

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    Date:
    19 September 2013
    Type:
    Editor's Choice

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  • Financial Services Resource Center for HR: Discrimination and Harassment

    Date:
    28 June 2013
    Type:
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    XpertHR's Financial Services Resource Center for HR helps financial services employers handle their most challenging employment issues by bringing relevant resources together in one place for easy access.

  • Phoenix Now Prohibits Sexual Orientation, Gender Identity and Disability Discrimination

    Date:
    28 February 2013
    Type:
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  • Rhode Island House Passes Same-Sex Marriage Bill

    Date:
    25 January 2013
    Type:
    News

    On January 24, 2013, the Rhode Island House of Representatives passed a bill (51-19) legalizing same-sex marriage and affording same-sex couples the same rights as heterosexual couples. If passed by the Senate, Rhode Island would join the rest of the New England states in permitting same-sex marriages

About this topic

HR guidance regarding sexual orientation harassment and creating effective workplace strategies to prevent it.