by Steve Jones
Q I have an employee who is outwardly gay. He is a great employee and says he loves working at my business. However, he recently mentioned that he doesn’t like when a specific coworker uses antigay slurs. The slurs are not directed toward the gay employee. Instead, the slurs are generic comments such as “That’s so gay.” Are the comments a form of harassment under the law? 
A It depends. Sexual orientation―specifically, lesbian, gay, bisexual, and transgender (LGBT) status―is not a federally protected category. Therefore, we must look to state law for guidance. Currently, 21 states and the District of Columbia have laws that prohibit sexual orientation discrimination in employment. Twenty-nine states do not prohibit sexual orientation discrimination.
The push to change federal law
Private interest groups are pushing hard for protection for sexual orientation and gender identity. Gender identity is an individual’s identification as a man or a woman, regardless of the person’s physical traits. Currently, no federal law prohibits discrimination based on sexual orientation or gender identity, but a proposed law would require sexual orientation and gender identity to be added as protected categories. Federally protected classes include race, color, national origin, religion, sex, age, disability, and genetic information.
The proposed law would prohibit employers from using an individual’s LGBT status as a basis for employment decisions (e.g., hiring, firing, promotion, or determining compensation). The law could be similar to other federal employment statutes in that it would not apply to employers that employ less than the requisite number of employees. Some versions of the proposal exempt religious employers as well.
Sex discrimination under Title VII
The U.S. Supreme Court has long recognized that the prohibition of sex discrimination under Title VII of the Civil Rights Act of 1964 extends to sex stereotyping. In a 1989 decision, the Court found that a well- qualified female employee was discriminated against because she did not comply with societal norms of female behavior. The employee was often told that she was too brash and brazen and that she should be more ladylike.
The Equal Employment Opportunity Commission (EEOC) and some federal courts have applied the Supreme Court’s sex-stereotyping analysis to LGBT employees. In one case, the EEOC determined that discrimination against an employee who underwent a sex change from male to female was a recognizable claim under Title VII. The employee complained that she suffered sex stereotyping because of her identity as a transgender woman.
In another case, the EEOC held that sex stereotyping against an individual based on her sexual orientation (lesbian) violated Title VII. Finally, a private company, DynCorp International, LLC, was ordered to pay $155,000 and furnish other relief to settle a sex-based harassment and retaliation lawsuit filed by the EEOC on behalf of a heterosexual married man who was harassed for “acting gay.”
Sensitivity training
Although it is not required, diversity and sensitivity training is being implemented by many employers. The programs are designed to address diverse cultures and lifestyles. The training highlights appropriate conduct that is expected from and required of employees. Many employers note that sensitivity training results in higher staff morale, improved communication skills, the prevention of workplace discrimination and prejudice, and constructive management of workplace conflicts.
Bottom line
Currently, there is no federal law that directly prohibits discrimination against LGBT employees. 
While an offhand “that’s so gay” comment may not be gender stereotyping under Title VII, you may want to implement diversity or sensitivity training in light of the complaint.
Steve Jones is a founding partner with Jack Nelson Jones & Bryant, P.A., in Little Rock, Arkansas. He may be contacted at sjones@jacknelsonjones.com.
I would suggest talking one-on-one with the employee whose comments may be found offensive. He or she might appreciate a candid discussion and coaching. Then, if you really think it’s a worthwhile business decision, you can pull everyone into a room for that kind of training.