Sexual Orientation Discrimination in the Workplace

Employment Discrimination on the Basis of Sexual Orientation

Sexual orientation discrimination in the workplace includes any types of different treatment or harassment of an employee based on a real or perceived sexual orientation. No federal law expressly outlaws employment discrimination in the private sector on the basis of sexual orientation, although federal government employees are protected from discrimination on the basis of their orientation as gay, lesbian, bisexual, or heterosexual.

Many states, including California, Iowa, Maryland, Minnesota, and Washington, have enacted laws that prohibit sexual orientation discrimination in private and public workplaces. Certain states prohibit sexual orientation discrimination only in public workplaces while some local ordinances prohibit this type of discrimination in certain workplaces but not others.

Sexual Harassment Based on Sexual Orientation

Harassment is any unwelcome conduct that is so pervasive or so severe that it would cause a reasonable person to feel that the conduct created a hostile work environment. While a single offhand remark about somebody’s sexuality might not be considered serious enough to be actionable, repeated offensive comments or one traumatic event could be construed as prohibited sexual harassment.

Although federal laws do not explicitly prohibit sexual harassment based on sexual orientation, implicit protections do exist. Sexual harassment, irrespective of a perpetrator or victim’s orientation, is illegal under Title VII of the Civil Rights Act of 1964.

For example, a female CEO who promises a raise to a female assistant in exchange for going on a date would subject the company to liability for quid pro quo sexual harassment. Under Title VII, both victims and perpetrators can be of either gender.

Similarly, a male supervisor who makes daily lewd sexual comments toward or about a gay employee, such that a reasonable person would feel that he created a hostile work environment, could be liable for sexual harassment under Title VII or under certain state laws.

Some companies adopt strong policies that prohibit discrimination based on sexual orientation. These policies may be incorporated in your employment contract or outlined in an employee handbook. Usually, disciplinary guidelines will outline how supervisors and managers who discriminate will be handled.

If there are no sexual orientation discrimination guidelines in your employee handbook, your state has not put into place any laws prohibiting sexual orientation discrimination, and the conduct does not qualify as harassment under Title VII’s definition, you may still be able to sue the employer or coworkers under your state’s tort laws.

For example, if a coworker gains access to your personal emails and spreads false rumors about your sexual orientation as a “joke” to your other coworkers, you would have a legitimate reason to complain to your supervisor on the grounds of sexual harassment. However, if your employer cannot rectify the situation because the rumor has already spread through the company and done damage, and the EEOC does not find that you have a strong claim for sexual harassment, you would still have the option of suing in state court for defamation, intentional infliction of emotional distress, and invasion of privacy.