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Changes to Employment Sexual Orientation Laws and Enforcement

December 17, 2014

Until the last few years, employees had very few, if any, protections from discrimination in the workplace due to their sexual orientation. An individual could be subjected to termination from employment based on sexual orientation discrimination without any recourse. Most state courts in the past tended to readily dismiss such cases or not acknowledge them as valid claims. While the current protections still have room for improvement, the laws in some states and the judges that interpret them have started to change.  Some of the most significant changes to sexual orientation discrimination laws and enforcement in recent years include the following.

More Active EEOC Enforcement: The Equal Employment Opportunity Commission (EEOC) is taking a proactive approach to sexual orientation cases by prosecuting sexual orientation discrimination complaints in a variety of manners. Due to the limitations under the Civil Rights Act in pursuing complaints based solely on sexual orientation, the EEOC has taken the approach that many forms of sexual orientation discrimination also constitute sexual harassment or sex discrimination. As such, the EEOC has pursued cases involving sexual stereotyping and gender identity. For example:

  • Comments or rumors about an employee being gay can be severe enough to constitute sexual harassment.
  • Innuendos about an employee’s sexuality and “feminine voice” can constitute sex discrimination.
  • Comments or stereotypes that men should only marry women can constitute sex discrimination.

Changes Through Presidential Executive Order:  The President has also recently made changes to sexual orientation protections.  On July 21, 2014, President Obama amended Executive Order 11478, which significantly affects companies that have federal government contracts over $10,000. The changes to the Executive Order prohibit federal contractors, subcontractors, and construction employers working on federally assisted construction projects from engaging in discrimination in employment on the basis of sexual orientation or gender identity. The specific rules for processing such cases and enforcing the changes to the amended Executive Order are being developed by the Department of Labor.

Changes in Court Rulings:  Much like the legal debates over gay marriage, the courts are slowly but surely changing their views on sexual orientation complaints.  In the past, many courts tended to take a narrow view that sexual orientation claims were not recognizable under law because they were not covered under the Civil Rights Act.  Recently, however, many courts have taken a different approach and have issued new rulings that give more leeway in filing such claims. For example, some courts are starting to view sexual orientation claims, which are cases that can be brought to court, as discrimination based on sexual harassment.

Changes to Existing Local Laws: In different areas of the country, many localities (cities and counties) and states are enacting laws protecting against sexual orientation discrimination. Some jurisdictions, such as the District of Columbia have had such protections for some time. However, many other jurisdictions are moving toward enacting their own laws protecting against discrimination based on sexual orientation.

Changes Through Congressional Action:  Congress is slowly moving to incorporate sexual orientation and gender identity protections in laws.  The latest version of this type of bill is the Employer Non-Discrimination Act (ENDA). The Senate has passed a version of the ENDA but the bill has not yet passed the House this year.  Although the ENDA probably will not be enacted just yet, it is very likely that such changes will be approved in the years to come by both the House and Senate and signed into law.

The legal system in regard to sexual orientation discrimination is experiencing significant change. The laws that protect employees from arbitrary treatment based on one’s sexual orientation are not where they need to be, but are far better than they were just five years ago. It is clear that this area of law is evolving to the point where the legal system will provide even stronger protections in the years to come.

Contact Us

If you are an employee who is in need of legal advice or representation regarding sexual orientation discrimination, please contact our office at (703) 668-0070 to schedule a consultation. Please also visit us at www.retirementlaw.com.

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