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

  • EEOC Settles Same-Sex Harassment Lawsuit

    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:
    News

    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.

  • Discrimination and Harassment Content Enhanced With New LGBT Supervisor Briefing

    Date:
    19 September 2013
    Type:
    Editor's Choice

    The Discrimination and Harassment content has been enhanced with a new Supervisor Briefing on Understanding Sexual Orientation and Gender Identity Issues in the Workplace

  • Understanding Sexual Orientation and Gender Identity Issues in the Workplace

    Type:
    Supervisor Briefings

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

  • Financial Services Resource Center for HR: Discrimination and Harassment

    Date:
    28 June 2013
    Type:
    Editor's Choice

    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:
    News

    Arizona employers take note - the Phoenix City Council has passed a measure prohibiting employers from discriminating against lesbian, gay and transgender individuals, as well as individuals with disabilities. The Ordinance G-5780 goes into effect on March 26, 2013. It applies to all employers within Phoenix city limits with at least one worker.

  • 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

  • Date:
    12 November 2012
    Type:
    Legal Timetable

  • EEOC Seeks to Protect Vulnerable Farm Workers from Harassment

    Date:
    18 October 2012
    Type:
    News

    The EEOC is pursuing non-traditional harassment claims such as those by males against males and claims based on national origin harassment, sexual violence and abuse. Further, the EEOC has indicated that farm workers are particularly vulnerable because they often work long hours in isolated working conditions and lack familiarity with legal protections and access to the legal system.

  • Gender Stereotyping Sexual Harassment Claim May Be Brought Regardless of Plaintiff's Sexual Orientation

    Date:
    13 September 2012
    Type:
    Law Reports

    In Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3d Cir. 2009), the 3rd Circuit considered whether an unlawful employment practice occurs when gender is a motivating factor for any employment practice, even if it was not the only factor.