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Sexual Orientation Discrimination and the Employment Non-Discrimination Act

by Gary Fealk

There has been a push in recent years to provide homosexual, bisexual, and transsexual individuals with protection against discrimination, including discrimination in the workplace. There is even proposed federal legislation, the Employment Non-Discrimination Act (ENDA), on the horizon that may pass in the next session of Congress.

Certain states have enacted discrimination laws that apply to these groups. In some states, sexual orientation discrimination is prohibited only in certain municipalities. There have also been attempts to provide antidiscrimination protections through court cases interpreting sex discrimination laws.

Sexual orientation discrimination is currently not explicitly prohibited under federal law. But that doesn’t mean employers don’t need to be concerned about sexual orientation or gender-identity discrimination.

State-by-state comparison of 50 employment laws in all 50 states, including sexual orientation discrimination

It depends on where an employer is located
Some states and municipalities prohibit gender-identity discrimination. Employers must take heed of and follow the local and state discrimination laws and follow of all states and municipalities in which they operate.

In states where antidiscrimination laws do not proscribe discrimination on the basis of “sexual orientation,” that doesn’t mean that businesses shouldn’t be concerned about sexual orientation discrimination issues. Some courts have held that “gender stereotyping” (e.g., requiring certain styles of dress for men and women) can be the basis of a gender discrimination lawsuit.

Creative lawyers often try to file sexual orientation discrimination claims under a gender discrimination theory. A number of cases have occurred in situations in which an employee is going through a sex change or is attempting to live as a member of the opposite sex.

The way it stands now
While federal law doesn’t currently prohibit discrimination based on sexual orientation, the U.S. Supreme Court has held that under current federal law, same-sex sexual harassment is actionable as sex discrimination.

That’s not the end of the story, though. It’s highly likely there will be more federal legislation on the issue. With the election of Barack Obama and the increased majorities of the Democratic Party in the House and Senate, it’s highly probable that the proposed Employment Non-Discrimination Act, federal legislation prohibiting sexual orientation or gender-identity discrimination, will be passed. Bills prohibiting sexual orientation discrimination have been proposed in the past but have not been passed.

In past bills banning sexual orientation discrimination, the U.S. House of Representatives has included a section prohibiting discrimination based on “perceived” sexual orientation. That clause would permit a claim if an employee could prove that he was discriminated against because of another person’s perception about him (i.e., being homosexual) even if the perception is wrong.

The bills proposed in the House of Representatives also extend discrimination prohibitions to any individual based on his or her association with another individual based on that other person’s actual or perceived gender identity or sexual orientation. In other words, a claim could be made that an employee was discriminated against because he was friends with, worked closely with, or was related to a homosexual (or even heterosexual).

Keep up with the latest changes in federal employment-related legistation with the Federal Employment Law Insider newsletters

Bottom line
Right now, sexual orientation discrimination is explicitly prohibited only in certain states and municipalities, but stay tuned. It’s likely that some form of federal sexual orientation discrimination law will be passed.

Gary Fealk is an attorney and shareholder in Vercruysse, Murray & Calzone, P.C., in Detroit. You can reach him or (248) 433-8708.

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