No federal law explicitly bans discrimination on the basis of sexual orientation; therefore, LGBT employees can still face discrimination in the workplace. The EEOC issued guidance several years ago that discrimination against an individual because of sexual orientation is discrimination because of sex and therefore is prohibited under Title VII.
On March 1, 2016, the EEOC filed two federal cases, one in Maryland and one in Pennsylvania, challenging discrimination on the basis of sexual orientation as sex-based discrimination.
The lawsuit against Scott Medical Health Center is a harassment lawsuit. It alleges that the manager of a gay male employee repeatedly used anti-gay epithets and made other offensive comments about the employee’s sexual orientation. The clinic’s director refused to stop the harassment after the employee complained.
The lawsuit against IFCO Systems is a harassment and retaliation lawsuit. A lesbian forklift operator was fired after she complained she was being harassed by her supervisor.
Sexual discrimination charges filed with the EEOC based on sexual orientation are also on the rise. In fiscal year 2015, ending September 30, 2015, the EEOC has received 1,412 charges that included allegations of discrimination based sexual orientation, gender identify or transgender status. That is a 28% increase from fiscal year 2014.
Even though federal law does not explicitly prohibit discrimination based on sexual orientation, best practice for employers is to include sexual orientation status as a protected classification in its employment handbook. Further best practice is to treat discrimination and harassment on the basis of sexual orientation as the employer would any other form of discrimination.
If you have questions about employment law or other civil litigation issues, please call Tracy Stroud at 252-321-2020.