Sexual Orientation Discrimination

Sexual orientation discrimination occurs when an employee is treated differently in the workplace because the employee is, or is perceived to be, homosexual, bisexual or heterosexual.

Defining Discrimination

Sexual orientation discrimination may take one or more of the following forms:

• Sexual orientation as the basis for employment decisions. An employer discriminates against an employee if the employer makes employment decisions after considering the employee's sexual orientation or perceived sexual orientation. For example, it is discriminatory for an employer to hire, fire, promote, demote, reward, or punish an employee because of the employee's sexual preference.
• Harassment. Discrimination may also take the form of harassment by an employer or co-worker. Unwanted or offensive comments, jokes, or physical contact made because of an employee's sexual orientation may constitute discrimination if the conduct is severe or pervasive.
• Benefits discrimination. Some states require that employer benefits be available equally to all employees. Thus, if an employer offers health insurance to the spouses of married heterosexual employees, the employer is guilty of discrimination if the employer does not also offer such benefits to the partners of homosexual employees.

Federal and State Antidiscrimination Laws

While federal laws protect employees from discrimination on the basis of race, national origin, sex, disability and age, federal protection against sexual orientation discrimination is limited. The Civil Service Reform Act of 1978 (CRSA) prohibits federal employers from discriminating on the basis of sexual orientation. There is not, however, a federal law that prohibits sexual orientation discrimination in private employment. State laws offer more comprehensive protection against sexual orientation discrimination. Sexual orientation discrimination in public and private employment is prohibited in seventeen states and the District of Columbia. Six additional states prohibit sexual orientation discrimination only in public workplaces. Many local governments offer further protection against sexual orientation discrimination, and a growing number of private companies have enacted policies prohibiting such discriminatory practices.

Alternatives to Federal and State Antidiscrimination Laws

If an employee feels that he or she has been discriminated against, but lives in a state that offers no protection against sexual orientation discrimination, the employee may seek recovery under an alternative legal theory, such as tort or contract law. For example, an employee may file a charge of intentional or negligent infliction of emotional distress, harassment, defamation, or invasion of privacy. If the discrimination took the form of physical abuse, the employee may file an action for assault or battery. An employee may also bring charges against an employer for interference with an employment contract or for wrongful termination.

Reporting Sexual Orientation Discrimination

Employees who feel that their employment rights have been violated by sexual orientation discrimination should contact an attorney or their state or local antidiscrimination agency. Victims of discrimination should seek help as soon as possible, as many states enforce statutes of limitation for discrimination claims. For example, California requires that the employee file a complaint with the California Labor Commission not later than 30 days after he or she has been discriminated against.

Potential Damages

If an employee is successful in bringing a claim for sexual orientation discrimination, the employee may recover lost wages and other benefits, damages for emotional distress, and punitive damages.