Overview: Although sexual orientation is not explicitly protected under Title VII, the Equal Employment Opportunity Commission (EEOC) takes the position that it is unlawful as a form of sex discrimination under Title VII. Further, many state and local laws prohibits applicant and employee discrimination based on sexual orientation. Therefore, it is best practice for an employer to prohibit discrimination based on sexual orientation.
This means that an employer should have a zero tolerance policy and strictly prohibit treating an individual unfairly based on sexual orientation as well as prohibit slurs and stereotypes intended to cause a hostile work environment. An employer should also understand that training employees and supervisors on sexual orientation issues will raise awareness and increase tolerance.
Further, because sexual orientation can be a sensitive issue, an employer needs to know how to adequately confront challenging workplace issues.
An employer must be prepared to make reasonable accommodation for transgender individuals with respect to dress codes, rest rooms and managing employee privacy and confidentiality with regard to transitioning employees.
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.
Author: Beth P. Zoller, JD, Legal Editor
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HR guidance on ensuring that workplace policies and practices do not discriminate based on sexual orientation or gender identity.