Although Congress has debated the idea, no federal law specifically prohibits job discrimination based on an employee or applicant's sexual orientation.
Employees have tried to claim sexual-orientation discrimination under a variety of federal employment laws, including the Americans with Disabilities Act, Equal Pay Act, and Title VII. Federal courts, however, have denied such claims.
No claim under Title VII
There's been an increase in workers filing Title VII cases alleging harassment based on sexual orientation. This is due, in part, to a 1998 Supreme Court ruling that said an employer may be held liable for same-sex sexual harassment under Title VII. (Oncale v. Sundowner Offshore Services, 532 U.S. 75)
Under Oncale, employees have the legal right to sue for sexual harassment even when they and their alleged harassers are the same gender. But to succeed in such cases, employees must show that they were harassed because of their sex.
The Oncale case never mentioned whether same-sex harassment encompassed harassment based on the employee's sexual orientation. As a result, perhaps the biggest question Oncale raised is where to draw the line between same-sex harassment and sexual orientation harassment.
Cases decided since Oncale have been clear: Harassment based solely on a person's sexual orientation is not covered under Title VII.
Should you revise your sexual-harassment policies in light of Oncale? Probably not, unless your policy limits the definition of harassment to male-female situations.
However, your company may need to change its sexual harassment training. Employees, especially supervisors, should be told that the sexual harassment policy applies to male-on-male and female-on-female harassment, too. Employees should also be told that same-sex harassment is not limited to situations in which one or more of the parties involved is homosexual. Remember, the issue is whether there was inappropriate conduct because of a person's gender, not his sexuality.
What to include in EEO policy
Does this provide a "free pass" to discriminate against homosexual em-ployees? Not at all. With increasing frequency, employees alleging sexual-orientation discrimination can file suit under state and local laws.
Currently, 11 states, the District of Columbia and 116 cities and counties have laws prohibiting employment discrimination based on sexual orientation.
If your state or local laws ban discrimination against homosexuals, include sexual orientation in your equal employment opportunity (EEO) policy, or even in a collective bargaining agreement. That way, if you're faced with a sexual orientation-related lawsuit, you can point to your policy as evidence of your commitment against unlawful discrimination.
If no state or local laws apply to your company, you may choose to leave any reference to sexual orientation out of your EEO policy. If you include such references, you may increase your liability. Case in point: A federal district court in New York indicated that a state breach-of-contract claim might be possible if a domestic partner is denied benefits but the employer's policies indicated that it would not discriminate on the basis of sexual orientation.
Companies have come under pressure in recent years to provide benefit coverage to employees' domestic partners. While no federal law compels employers to provide benefits to domestic partners, some state and local laws do.
Most notably, San Francisco, Los Angeles and Seattle require employers with city contracts to extend the same benefits to their employees' domestic partners as they do to spouses.
More employers, however, are voluntarily adding partner benefits as a recruiting and retaining tool. One gay rights group estimated that more than 3,500 companies were offering or had announced they'd offer health insurance to domestic partners of employees.
If you decide to provide domestic partner benefits, you have another decision: Do you offer them to same-sex partners, opposite-sex partners or both? Some companies have decided to offer partner benefits only to same-sex partners. They reason that opposite-sex partners have the option of getting married and, therefore, becoming eligible for spousal benefits.
Is this legal? It depends on state and local law. A federal district court recently held that the Chicago Board of Education's plan to provide health insurance benefits to its employees' same-sex domestic partners, not opposite-sex partners, does not violate the 14th Amendment equal protection and procedural due process rights.
Jonathan Landesman is an associate in the Philadelphia office of Montgomery, McCracken, Walker & Rhoads, LLP, where he practices, representing and employers exclusively.
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