Harassment in the Workplace Due to Sexual Orientation

Title VII does not specifically include "sexual orientation" protection.

The Civil Rights Act of 1963 (Title VII) is the federal law that protects workers from harassment on the basis of race, national origin, religion, sex, age and disability. Because sexual orientation is not explicitly listed among the "protected classes," sexual orientation harassment claims have been hotly contested and have resulted in conflicting rulings.

Court Decisions

When it comes to sexual orientation, justice is not always blind.

Some courts, such as the Ninth Circuit Court of Appeals in Rene v. MGM Grand Hotel, 2002, have ruled that any harassment that is sexual in nature constitutes illegal sexual harassment. However, other courts, such as the federal court in Albany, New York, ruled in Martin v. State of New York, also in 2002, that sexual orientation is not protected under Title VII.

Federal Law

Many attempts at legislation to protect sexual orientation have been made.

"The Employment Non-Discrimination Act," sponsored by Congressman Barney Frank (D-MA), seeks to include sexual orientation among the protected classes. Although it has been repeatedly introduced in Congress (most recently in June 2009), as of 2010, all attempts to pass it have failed. There does exist federal law, however, prohibiting sexual orientation harassment against federal government employees.

State Law

All states do not provide equal protection under the law.

Twenty states and the District of Columbia have laws that prohibit sexual orientation harassment in both the public and private sectors. These are California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington and Wisconsin. A few others extend this protection only to public workers.

Local Law

Even if a state does not legally prohibit sexual orientation harassment, a city or county in the state might. Also, even when there has been no state or local law prohibiting it, there have been successful claims against individual employers whose employee handbooks prohibit sexual orientation harassment as a matter of corporate policy. One such case, Dunbar v. Footlocker, Inc., was made in 2004 citing breech of contract. Others have been successful on the basis of union violations, infliction of emotional distress, defamation, and breach of the covenant of good faith and fair dealing. Some victims have even sought redress through workers' compensation insurance claims.

The Supreme Court

The Supreme Court has yet to rule on Title VII interpretations.

The Supreme Court of the United States has yet to provide a definitive interpretation of Title VII. It ruled in Price Waterhouse v. Hopkins, 1989, that "sexual stereotyping" is illegal. However, its decision was narrowly construed, saying that a woman was wrongly denied a promotion because she was "too masculine in style;" her actual sexual orientation was not specifically at issue. In 1998, in Oncale v. Sundowner Offshore Services, Inc., the Court ruled that the brutal sexual hazing of a male oil-rig worker was illegal; but again, sexual orientation was not specifically addressed because it was a case involving sexual harassment of a straight male by other straight males. However, both these cases have been successfully cited as supporting precedents in lower courts on both sides of the issue.

References

• NOLO: Sexual Orientation Discrimination: Your Rights
• Lambda Legal: Protecting Employees When the State Doesn't
• Pink News: Gay US Congressman Re-introduces Workplace Discrimination Bill
• Lambda Legal: Dunbar v. Footlocker, Inc.
• The Free Library: Title VII Protects Gay Workers From Sexual Harassment, Ninth Circuit Finds

Resources

• Lambda Legal: Lambda Legal Regions