While Title VII makes it illegal to discriminate on the basis of race, gender, religion, age or disability, no federal law explicitly says that you can't fire someone just because the person is gay.
But employers and supervisors take note: That doesn't mean it's open season on homosexuals.
For starters, 17 states and Washington, D.C., have laws that prohibit sexual orientation in private employment and another seven states extend that protection to public employers (see box below). Plus, more than 180 cities and counties nationwide ban sexual-orientation bias in at least some workplaces.
Even if there's no gay-bias law in your state, county or city, tread lightly. The U.S. Supreme Court has said that sexual harassment between members of the same gender can violate Title VII. And employees and their lawyers are finding creative ways to file cases related to sexual orientation, such as privacy invasion, assault, defamation and intentional infliction of emotional distress.
The safest route: Establish a policy that bans same-sex harassment, as well as prohibiting any discrimination or harassment based on sexual orientation or gender roles. That way, you won't run afoul of either Title VII or state/ local sexual-orientation laws.
Recent case: Christopher Vickers worked for a medical center as a private security officer in an all-male department. After he became friends with an openly gay doctor, Vickers claimed his co-workers and a supervisor began harassing him based on the assumption that Vickers was a homosexual, too.
For almost a year, Vickers kept a day-by-day account of the alleged harassment, including rude comments, sexual gestures, "requests" for sexual favors and name-calling.
Vickers sued, alleging sexual harassment and sex discrimination. The 6th Circuit rejected the lawsuit, saying sexual-orientation bias isn't illegal under Title VII. The court said it's not illegal to harass a male homosexual who acts within established male stereotypes.
But the court did come up with a long list of harassment and discrimination that would be illegal, such as telling a female employee that she should act less masculine or telling a male worker that he should act less feminine. (Vickers v. Fairfield Medical Center, et al., No. 04-3776, 6th Cir., 2006)
- Sample Policy: Time Sheets
- It cuts both ways: Be on guard for religious harassment that offends nonbelievers, too
- The easiest way to win discrimination cases: Prove you treat everyone equally
- EEOC sews up settlement with Asheboro textile firm
- Cite solid reason for termination to beat bias lawsuit based on statistical argument