Title VII’s silence on gay bias doesn’t give OK to discriminate

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in Compensation and Benefits,Discrimination and Harassment,Employment Law,Firing,Human Resources

It would be an understatement to describe the working relationship between nurse Gary Hamner and the hospital's medical director as poor. Hamner, a homosexual, says the director harassed him by refusing to communicate with him, flipping his wrists and making jokes about homosexuals.

Hamner filed a written grievance with the hospital. Soon after, he was fired for falsifying a hospital document. Hamner claimed the firing was illegal retaliation under Title VII, but a court threw out the claim and the 7th Circuit Court of Appeals agreed.

Its reasoning: Title VII doesn't cover harassment based on sexual orientation. Although the U.S. Supreme Court's 1998 decision in Oncale v. Sundowner Offshore Services Inc. said same-sex harassment is illegal when it occurs because of the plaintiff's sex, federal courts have continued to rule that harassment based solely on a person's sexual preference is not covered by the federal law. (Hamner v. St. Vincent Hospital, No. 99-3086, 7th Cir., 2000)

Advice: If you permit harassment of homosexuals in the workplace, you still could be liable under other laws. Several state and local anti-discrimination statutes protect homosexuals. Plus, sexual orientation lawsuits have been brought with limited success under a variety of federal employment laws, including the Equal Pay Act, Americans with Disabilities Act and ERISA.

Bottom line: Check your obligations under state and local law.

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