Many people are surprised to discover that the main federal law against job discrimination – known as Title VII – doesn’t apply to gay people. It covers job discrimination based on race, color, ethnicity, sex, and religion, but it doesn’t apply to sexual orientation.
But that doesn’t mean that gay people have no rights in the workplace against discrimination and harassment. It’s just that the law is more complicated.
Here are some examples:
- While the federal Title VII law doesn’t apply to sexual orientation, more than half the states have passed their own laws that prohibit discrimination in the workplace. Naturally, these vary quite a bit from state to state. Some states have very stringent protections for gay people, while others are more limited. Some state laws apply only to public employees, and not to private businesses.
- The federal Title VII law doesn’t just prohibit discrimination based on race and sex, such as unequal pay and preferential hiring. It also prohibits harassment on the job, such as unwelcome sexual advances or displays of pornography. With state laws that prohibit discrimination against gays, however, it’s not always clear if the law prohibits on-the-job harassment as well as bias in the terms of employment.
For instance, a Connecticut man who had worked as a machinist for nearly 30 years claimed that he was subjected to anti-gay slurs by his co-workers for the last 13 years of his employment. He sued his company, claiming that the employer didn’t take sufficient steps to prevent such harassment.
The employer argued that the state law prohibited discrimination against gay people as to compensation and terms of employment, but didn’t require employers to police the workplace against negative comments and ill feelings.
But the Connecticut Supreme Court disagreed, and said the law also required employers to protect gay workers against a “hostile work environment” – or at least against one that was so severe as to significantly affect an employee’s working conditions.
- In one interesting recent case, a man sued his employer claiming that he had been harassed by his co-workers because of his “effeminate mannerisms.” A federal appeals court in Philadelphia allowed him to sue under the federal Title VII law.
According to the court, the man wasn’t claiming discrimination because he was gay, but because he acted like a woman – and therefore, this was really a claim for sex discrimination.
- Another issue that sometimes comes up is whether employees who undergo a sex change are protected by the discrimination laws.
Interestingly, the federal Equal Employment Opportunity Commission recently decided that while gay people aren’t protected by Title VII, transgendered people are protected.
That case involved a woman who claimed she was rejected for a job because she was in the process of becoming a man. According to the EEOC, this was discrimination on the basis of sex, which is covered by the federal law.
- It’s well-established that Title VII prohibits sexual harassment, but interestingly, that may be true regardless of the sexual orientation of the harasser. For instance, a federal appeals court in New York recently allowed a woman to sue for sexual harassment under Title VII where she claimed that her female supervisor was a lesbian and repeatedly touched her in an inappropriate manner.
- Apart from discrimination and harassment issues, there are many other employment topics that come up concerning gay people, such as their rights to certain job benefits. We’d be happy to provide legal guidance in this area.