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
The Discrimination and Harassment content has been enhanced with a new Supervisor Briefing on Understanding Sexual Orientation and Gender Identity Issues in the Workplace
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.
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.
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.
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
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.
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.
Courts and administrative agencies are reinterpreting federal and state antidiscrimination laws, and many state laws and municipal ordinances have been amended as providing employment-related protection for transgender individuals. These changes have a significant impact on employers' obligations to their employees, and opens the door for increased exposure and liability for those employers who do not incorporate this into their EEO policies and procedures.
HR guidance regarding sexual orientation harassment and creating effective workplace strategies to prevent it.