Sexual Orientation Discrimination
Definition of Sexual Orientation Discrimination
Sexual Orientation Discrimination means treating a person differently because of that person’s real or perceived sexual orientation: lesbian, gay (homosexual), bisexual, asexual, pansexual (!), or straight (heterosexual).
Definition of Gender Identity Discrimination
Gender identity discrimination means treating a person differently because of their gender identity. “Gender identity” refers to the gender with which a person identifies, which may be the same or different from that person’s anatomical or biological gender. Gender identity doesn’t necessarily have anything to do with a person’s sexual orientation.
Now that we have some cultural definitions down, let’s move on to law and politics.
History of Sexual Orientation and Gender Identity Discrimination
There was a time when the federal courts consistently ruled that federal prohibitions on “sex” discrimination meant “gender” discrimination, and that federal law did not prohibit sexual orientation discrimination. Bills have been repeatedly introduced in Congress over the years to explicitly prohibit sexual orientation discrimination in employment, and those bills have never made it through Congress to the President.
The Obama Administration has recently taken a different path. Since April 8, 2015, Executive Order 13672 has prohibited federal government contractors and subcontractors from sexual orientation and gender identity discrimination in all new federal contracts. This anti-discrimination ban also covers new modifications to existing federal contracts.
The Equal Employment Opportunity Commission has also begged to differ with the federal courts and Congress. The EEOC explicitly interprets Title VII's prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. See https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm. The EEOC is now filing more and more cases alleging that sexual orientation and gender identity discrimination violate Title VII of the Civil Rights Act. See https://www.eeoc.gov/eeoc/litigation/selected/lgbt_facts.cfm.
More and more state and local governments are passing laws prohibiting sexual orientation and gender identity discrimination in employment.
The EEOC’s interpretation and Obama’s Executive Order technically don’t have the force of law in purely private sector employment. However, as cultural perceptions of sex, gender, sexual orientation, and gender identity evolve and shift, the legal waters have gotten more and more muddied.
The Supreme Court set the stage for gender identity discrimination claims way back in 1989. In an opinion authored by Sandra Day O’Connor, the United States Supreme Court decided in Price Waterhouse v. Hopkins that Ann Hopkins had a valid sex discrimination claim against Price Waterhouse for passing her over for partner. Justice O’Connor pointed emphatically to evidence that Hopkins had been told her chances would be better in the future if she “[w]ould ‘walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” In other words, the Price Waterhouse partners illegally passed her over because she did not sufficiently “identify” with the classical female stereotype. While one could say Hopkins is more about gender stereotyping than gender identity, the focus on pure biology began to fade away with Justice O’Connor’s opinion.
The legal waters have been even more muddied in the arena of same sex sexual harassment. Back in 1998, staunchly conservative Justice Antonin Scalia authored the seminal case recognizing such claims. See Oncale v. Sundowner Offshore Services. Oncale involved allegations of men sexually harassing, assaulting, and threatening to rape another man.
In some cases since then, the federal courts have reasoned that harassment of employees solely on the basis of their sexual orientation is not against the law. In other cases since then, the federal courts have explained that it is illegal for men to harass other men because they were men, and for women to harass other women because they were women.
Good luck figuring out which side of the fence bad words and deeds fall upon in the real workplace. Sexually charged bad acts and words are capable of being interpreted as motivated by any combination of gender, sexual orientation, or gender identity discrimination. Judges aren’t going to send these plaintiffs to an early exit out of the courthouse.
Best Risk Management Solution
The best risk management conclusion is to prohibit sexual orientation and gender identity discrimination altogether in employment. Employers need to make that clear in their written policies. Besides, does it really make good business sense to discriminate against good workers because of their sexual orientation or gender identity? Employers should live by the assumption that the only relevant thing is whether the applicant can, or the employee does, perform the essential functions of the job well. That still leaves a whole lot of things to grapple with, but it answers the “big picture” question about sexual orientation and gender identity discrimination.
The information in this article is not legal advice, and you should not take any action based on information you find in this article without first consulting qualified legal counsel concerning the facts and circumstances of your situation. No attorney-client relationship is established by reading this article.