Title VII of the Civil Rights Act outlaws discrimination based on sex, but not on sexual orientation.
Note: Discrimination against a man or a woman based on whether the employee conforms to stereotypes about appropriate behavior for each sex is sex discrimination. However, outright discrimination against employees based on sexual orientation isn’t covered under the federal law. Unfortunately, it’s hard to distinguish between the two.
Recent case: Marty Gilbert worked in theater and is openly gay. He belongs to a local union that uses a hiring hall for work referrals.
When Gilbert was assigned to design ceremonies for the Country Music Association Awards, he immediately ran into trouble. One co-worker called him a “faggot” and threatened to stab him. This was no empty threat: The co-worker was facing criminal charges for stabbing other gay men.
Gilbert complained. The union then allegedly refused to send him on any other jobs, so he sued, alleging sex discrimination.
But the 6th Circuit Court of Appeals dismissed the case after analyzing the facts. It determined that Gilbert was singled out because he was a homosexual, which is protected not under Title VII. Nothing in his complaint indicated that he was targeted because he acted feminine, for example. If that had been the case, he might have had a sex discrimination based on stereotype case. (Gilbert v. CMA, et al., No. 09-6398, 6th Cir., 2011)
Final note: Your best bet is to ban both forms of discrimination, even if one isn’t technically illegal under federal law. Why risk a lawsuit by allowing co-workers to indulge in ugly behavior that does nothing but harm the work environment? After all, the workplace is for work, not expressing one’s prejudices at the expense of others.
- Use hotline records to nail down complaints
- Back anti-harassment policy with robust training, enforcement
- Constructive discharge claim requires showing more than hostile work environment
- Want to discard old applications? Tell applicants up front
- Act fast on hostile workplace complaints--or prepare for costly, complicated lawsuit