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 as a protected class. 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. 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 in order to create a tolerant workforce.
Trends: Employers should be aware of the rapidly changing law with regard to protections based on sexual orientation. On the federal level, in taking the position that discrimination based on sexual orientation is a form of sex discrimination because it is based on sex, the EEOC has brought a number of lawsuits against high profile companies alleging sexual orientation discrimination and has made eradicating such discrimination part of its Strategic Enforcement Plan. Additionally, President Obama issued an Executive Order prohibiting sexual orientation discrimination by federal contractors. Legislation prohibiting sexual orientation discrimination continues to be introduced in Congress.
In 2015, the Supreme Court ruled that the Constitution requires all states to license same-sex marriages and to recognize such marriages when they were lawfully licensed and performed out of state. The decision declaring that same-sex married couples can no longer be denied the benefits that are provided to opposite-sex married couples has had a significant impact on employers as it put to rest a patchwork of state laws on gay marriage.
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
Updated to include information on a federal district court case on whether Title VII prohibits sexual orientation discrimination.
Updated to reflect amendments to regulations addressing sexual harassment prevention training for supervisors, effective April 1, 2016.
Updated to reflect EEOC Fact Sheet on bathroom access rights for transgender employees.
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.
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.
HR guidance regarding sexual orientation harassment and creating effective workplace strategies to prevent it.