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. A great number of states and municipalities prohibit discrimination and harassment based on sexual orientation and gender identity and legislation 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 Zoller, JD, Legal Editor
Updated to reflect amendments to sexual harassment prevention training requirements, effective August 30, 2019; under review in relation to amendments expanding sexual harassment prevention training.
Updated to include information on a federal district court case on whether Title VII prohibits sexual orientation discrimination.
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.
HR guidance regarding sexual orientation harassment and creating effective workplace strategies to prevent it.