Sexual Orientation / Identity
Unlike same-gender sexual harassment
claims (male on male or female on female),
which are actionable, if an individual is
harassed or fired from her private
employment on the basis of her sexual
orientation or affectional preference, most
of the major federal discrimination laws
will not protect her.
While homosexuality per se is not a basis for exclusion from most forms of
government employment, homosexuality plus certain other factors may support
the constitutionality of certain adverse employment actions in varied
government positions, i.e., a woman being fired not because she is a lesbian but
because she "married" another woman. Stricter standards against gay and
lesbian employees exist within the teaching profession, as well as for police and
military employees. The fight to include discrimination based on sexual
orientation, both real and perceived, continues. However, the recent
Employment Non-Discrimination Act, which would have amended Title VII (the
main federal anti-discrimination law) to include discrimination based on sexual
orientation, failed in both houses of Congress.
The good news is that eight states and the District of Columbia have
incorporated full protection for employees against employment discrimination
on the basis of orientation into their human rights laws. For states that have
passed laws regarding sexual orientation, click here.
In addition, many city and local ordinances prohibit such discrimination; e.g.,
New York City and New York State law includes sexual orientation as a
protected classification. Employees have been more successful in creative
lawsuits not based on discrimination against gays and lesbians per se, but upon
conduct otherwise proscribed by Title VII. For example, in one recent case, the
Plaintiff successfully argued that his involvement in a church-related
organization that promotes homosexual rights was a religious practice protected
by Title VII. The Court found that membership in a group that advocates
homosexual rights may be a religious belief within the meaning of Title VII.
Additionally, arguments have been successfully made that pervasive harassment
against an individual due to his or her sexual orientation is in violation of the
Equal Protection and Due Process clauses of the United States Constitution.
