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While Congress mulls federal gay-Bias law, take note of state, local rules

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in Discrimination and Harassment,Human Resources

Although the U.S. House of Representatives earlier this month passed legislation that would make discrimination on the basis of sexual orientation illegal nationwide, don’t expect it to become the law of the land any time soon.

But that doesn’t mean employers are free to discriminate against gays and lesbians. Many states and localities prohibit sexual-orientation discrimination, and laws against sexual harassment may protect homosexuals’ rights.

Advice: Protect your organization from liability by instituting your own strong policy prohibiting discrimination and harassment based on sexual orientation.

The House on Nov. 7 passed the Employment Non-Discrimination Act of 2007, a bill that would make it illegal for most U.S. employers to discriminate against employees and job seekers on the basis of their sexual orientation. However, the Senate is unlikely to take action on the measure this year, and it would likely face President Bush’s veto pen even if it passed.

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 discrimination 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 and prohibits 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.

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