Is Sexual Orientation a Protected Class?

If you're wondering, "is sexual orientation a protected class," the answer is yes. Sexual orientation is a personal quality that is protected from discrimination. The Federal Government's equal opportunity employment policy was amended in 1998 by President Clinton to include sexual orientation as a protected class. Under federal law, sexual orientation is not a protected class, however, many state and local laws consider it to be.

Is Sexual Orientation Now a Protected Class?

Sexual orientation is now a protected class, and discrimination based on an a person's sexual orientation is prohibited by law. Discrimination based on one's sexual orientation is a form of sex discrimination. It is prohibited by the Civil Rights Act of 1986, Title VII. The Civil Rights Act states that it is unlawful to discriminate against a person based on their:

  • Race
  • Gender
  • Sex
  • Country of origin
  • Age
  • Religion

In a recent court case, Hively v. Ivy Tech Community College of Indiana, The Seventh Circuit United States Court of Appeals, Judge Diane Wood came to a decision that discrimination based on one's sexual orientation is a form of sexual discrimination, and should be prohibited, based on the Civil Rights Act. This resulted in the amendment of Title VII of the Civil Rights Act, to include sexual orientation. Since then, sexual orientation is a protected class, just like gender and race.

Discrimination against men and women based on their sexual orientation is based on employers' and individuals' expectations on how the given sex or person with certain sexual orientation will behave, and results in prejudice. If an employment decision is made based on the fact that the person behaves, dresses, or speaks differently, it is a case of discrimination, and – as sexual orientation is a protected class – is against the law.

Examples of Sexual Orientation Discrimination

There are many cases when discrimination based on sexual orientation can occur.

  • Employees' discomfort or disapproval based on a decision that is made because they look, speak, or dress differently from the rest of the employees
  • Discrimination because of dating or having a same-sex partner, living in a civil partnership with a person of the same sex
  • Denying career progression based on a person's sexual orientation
  • Harassment of employees based on their sexual orientation as a protected class

Making sexual orientation a protected class is in line with the position of the Equal Employment Opportunity Commission. According to the commission, the prohibition of discrimination based on sexual orientation and sexual identity, according to Title VII is in line with civil rights legislation and federal, state law, as well as human rights legislation.

Employment Discrimination and Sexual Orientation

Employment discrimination policies in the past did not cover the rights of lesbian, gay, bisexual, and transgendered (LGBT) workers, and this resulted in several cases of prejudice and discrimination. The LGBT community's rights have only gained recognition in recent years.

Employers now pay more attention to the needs of the LGBT community. There are several legislations and laws that aim to protect members of this protected group from sexual orientation-based discrimination in the workplace.

Federal Laws Concerning Sexual Orientation as a Protected Class

Current federal laws prohibit employment discrimination that is based on the following protected statuses:

  • Race
  • Color
  • Sex
  • Religion
  • National origin
  • Age
  • Disability status

Unfortunately, federal legislation does not cover sexual orientation as a protected class. There is a proposal in front of the Congress, however, to introduce a bill within the Employment Non-Discrimination Act (ENDA) that would make discrimination based on sexual orientation by employers illegal. Currently, members of the LGBT community working in the private sector do not have any legal protection provided by federal law. Those working in the public sector, however, are protected based on their sexual orientation and gender identity.

The origin of the federal legislation concerning sexual orientation diversity as a protected class date back to 1998, when President Clinton made an amendment to an executive order to include "sexual orientation" as an additional protectted class in the equal opportunity policy of the Federal Government. This executive order amendment has resulted in the protection of LGBT community members in the public sector.

Following the initiatives of President Clinton, President Obama introduced a new federal employment legislation that covered gender identity, and made it a protected class under legislation in 2009. The remedies related to gender identity, however, are more limited than those related to sexual orientation.

You also need to know that even though there is no federal law that prohibits discrimination based on sexual orientation, employers still need to adhere to company, state, and local policies and act based on their ethical principles.  If you are an employer, you always have to check your state's legislation when creating anti-discrimination policies.

State Laws Concerning Sexual Orientation as a Protected Class

Up to 2015, the following states introduced policies to protect employees from discrimination based on gender identity and sexual orientation in both the public and private sector:

  • California
  • Colorado
  • Connecticut
  • Delaware
  • Hawaii
  • Illinois
  • Iowa
  • Maine
  • Maryland
  • Massachusetts
  • Minnesota
  • Nevada
  • New Jersey
  • New Mexico
  • Oregon
  • Rhode Island
  • Utah
  • Vermont
  • Washington and the District of Columbia

The following states have legislation to protect private sector employees from discrimination based on sexual orientation, but have no law concerning discrimination based on gender identity:

  • New Hampshire
  • New York
  • Wisconsin

Local Laws Concerning Sexual Orientation as a Protected Class

Further to federal and state legislation, around 200 cities and counties in the United States have laws that prohibit sexual orientation – based discrimination in the workplace.

It is recommended that you contact your state labor department and fair employment office to learn the specific antidiscrimination labor legislation that applies to your geographic area.

Company Laws Concerning Sexual Orientation as a Protected Class

Apart from adhering to local, state, and federal antidiscrimination law, some companies take an initiative to create their own diversity and equality policies that protect individuals with diverse gender identity or sexual orientation from discrimination. Creating a company policy promotes a positive culture and helps the company make ethical decisions.

If a company has an antidiscrimination policy in place, an employee – if they feel that they have been discriminated against based on their protected class – can contact the human resources or the management to resolve the issue and report the breach of the policy to their supervisor. If the employee's concern is not dealt with in the manner that is described by the company's policies, the person can then submit a legal claim against their employer stating that the employment contract has been breached by the company.

Legal Protection of Sexual Orientation

It is a requirement for all employers to make fair human resources decisions based on the performance, abilities, and achievements alone, without prejudice or bias.

There are different forms of discrimination based on sexual orientation, including harassment, defamation, breach of employment contract, unfair treatment, victimization, the violation of public policies, privacy invasion, intentionally or negligently inflicting emotional distress, and – in more serious cases – battery or assault.

Members of the LGBT community are protected by local legislation in many states and counties in the United States, but – as they are not considered a protected class based on federal legislation – need additional company-based protection. If you would like to learn how you can create your equal opportunities and anti-discrimination policies, you should talk to a specialist employment attorney.

LGBT Rights and Sexual Orientation as a Protected Class

There are an increasing number of court cases claiming that employers violated Title VII of the Human Rights Act based on sexual orientation and gender identity.

Based on the EEOC statistics, the agency received 1,412 allegations of discrimination related to gender identity and sexual orientation in 2015, which is an increase of 28% from the previous year. The majority of the claims received (82%) were related to sexual orientation discrimination.

Several proposals have been made since 1990 to adapt a legislation to prohibit employers from discriminating based on gender identity and sexual orientation. The Employment Non-Discrimination Act (ENDA) has been in front of the Congress in every year to discuss hiring and human resources practices of private companies, except for the 2005-2006 session.

Based on the above proposals, the Civil Rights Act of 1964 would be amended, to include the prohibition of discrimination based on gender identity and sexual orientation in private employment, services, and housing. Title VII currently applies to federal and private sector employers employing at least 15 people.

Executive Order 13672 applies to federal contractors who entered a new or modified contract after April 9, 2015. The executive order protects these employees from discrimination based on their sexual identity or orientation.

The Employment Non-Discrimination Act

Several states in the United States of America as well as the District of Columbia have passed local or state legislation to prohibit discrimination that is based on sexual orientation.

The Employment Non-Discrimination Act (ENDA) gained bipartisan support when it was introduced in Congress. It is designed to increase the discrimination protections provided by the federal government and ban discrimination based on gender identity or sexual orientation. The ENDA revision will prevent employers making hiring, firing, promotion, compensation, and employee support decisions based on their gender identity or sexual orientation. At the same time, the act prevents the preferential treatment of LGBT community members, while providing quotas for employers. It is important to note that under the Employment Non-Discrimination Act, employers are not obliged to provide domestic partner benefits to the spouses of LGBT employees. Armed Forces and religious bodies are not regulated by the ENDA.

Legal Cases of Sexual Orientation Discrimination

Even though the federal and some state laws do not make discrimination based on sexual orientation or gender identity illegal, employers need to be aware of different issues related to discrimination to prevent lawsuits and legal charges.

Several cases have been discussed by courts around the country, such as The Eleventh Circuit in Evans v. Georgia Regional Hospital and the Second Circuit in Christiansen v. Omnicom Group. In these cases, the judgments did not recognize claims related to sexual orientation as a valid foundation for discrimination. These cases might be appealed at the Supreme Court.

Even if a claim relates to gender identity or sexual orientation discrimination, courts might rule against the company based on "gender stereotyping" and the company would lose the lawsuit.

Recently, the Second Circuit denied recognizing sexual orientation as a protected class, however, the court claimed that the cause for this was the lack of specific legislation that relates to cases when individuals are discriminated against not because of their gender, but sexual orientation or gender identity, based on Title VII. Two of the judges recommended revisiting Title VII to provide a clearer guidance for the courts. The expansion of the title is currently being discussed by the Supreme Court.

It is important that companies and their management are aware of the dangers of discrimination, and address workplace equality and diversity appropriately. As an example, a company might develop their own policies that are related to employees who undergo a sex change and return to the workplace with a new gender identity.

Many employers create their own anti-discrimination policies in the workplace that are compulsory to follow by all workers and managers. Setting clear guidelines, as well as creating training and detailed policies, can help prevent legal challenges and reputation loss. Many organizations have internal policies prohibiting sexual orientation and gender identity discrimination in their company. Going further, some companies have an inclusive culture that embraces diversity, let it be diversity of age, religion, race, sexual orientation, or gender identity.

The best way for companies to avoid discrimination claims based on gender identity and sexual orientation is to have a clear vision, a positive corporate culture, and include diversity in their mission and vision statement. Employers need to be educated on the importance of diversity at the workplace and the positive culture has to be reinforced by managers.

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