Sexual Orientation Discrimination

Sexual orientation discrimination is a type of workplace discrimination where a person faces derogatory treatment, negative employment action, harassment, or a denial of benefits based on his or her sexuality. This includes people who identify as homosexual, asexual, bisexual, pansexual, and even heterosexual. While this type of discrimination has been observed in the workplace for decades, it wasn't until recently that social awareness brought attention to this discrimination throughout the country.

Because of how much it can affect a person's job, working environment, and health, it's important for employees to know what constitutes sexual orientation discrimination and how it ties into other types of discrimination. However, social media and the news have been rapidly increasing information flow and improving the situation for afflicted individuals.

What Are Some Examples of Sexual Orientation Discrimination?

To truly understand what sexual orientation discrimination is, it's important to discuss some examples. A few examples of the most common types of sexual orientation discrimination include:

  • Harassment

  • Different treatment

Harassment is a repeated offense where the aggressor repeatedly makes certain comments or actions such as:

  • Sexual jokes

  • Unwanted advances or pressure for dates

  • Unwelcome touching, staring, grabbing, gestures, and other physical conduct

  • Sexual assault

  • Drawings or cartoons putting down a specific sexual orientation

Differential treatment is when an individual doesn't receive the same type of workplace benefits or a workplace environment as other workers in the company. Some examples of this may include:

  • Wrongful termination

  • A write-up with no factual basis

  • Demotion

  • Not getting a promotion

  • Not being hired for a position

Supervisors, employers, co-workers, and third parties such as customers, vendors, or clients all have the potential to commit either harassment or discrimination. Certain companies even have a workplace culture that discriminates against non-heterosexual employees in explicit or subtle terms. Although there's no policy in place, that doesn't mean it isn't against the law.

Sexual Orientation Discrimination Under Federal Law

In 2015, the landmark case of Obergefell v. Hodges allowed LGBT couples the right to marry and to receive the same benefits and protections given to heterosexual couples through marriage. Despite this ruling, LGBT couples don't get the same treatment in the workplace, unless they're a federal employee.

Employees that work for the federal government have protection from sexual orientation discrimination. However, there is no current federal law that prohibits this type of discrimination in private sector businesses. Only sex, race, ethnicity, age, religion, and disability have protection.

Fortunately for these individuals, private companies and legislators are working together to find a way to offer protection for different sexual orientations in the workplace. Most recently, the Employment Non-Discrimination Act of 2009 and the Equality Act of 2010 have been at a point of debate in Congress. This comprehensive non-discrimination act provides protections for LGBT persons at their jobs, as well as protection regarding:

  • Housing

  • Education

  • Federal funding

  • Credit

  • Access to public places

While the Equality Act has not been signed into law yet, President Obama passed an Executive Order that added sexual orientation protection for federal works, including third parties the government does not directly employ.

As of 2017, 22 states and the District of Columbia have laws that prohibit sexual orientation discrimination. Twenty of these laws apply it to both the public and private sector. At any given time, hundreds of cities and counties have the same laws. However, many can change over time depending on appeals and other types of judicial action. Due to this, it's always important to check local laws to see if workers are covered for sexual orientation discrimination.

Sexual Orientation Discrimination and the EEOC

The Equal Employment Opportunity Commission, or EEOC, is the federal body that enforces federal anti-discrimination laws. It protects those that have faced harassment or other types of discrimination based on race, ethnicity, age, and more. However, because there's technically no sexual orientation protection, the EEOC has gone about protecting these individuals in another way.

To fight sexual orientation discrimination, the EEOC has found that it falls under "sex discrimination" because it states that it forces non-heterosexual individuals to conform to stereotypical gender roles. Currently, the EEOC accepts claims based on sexual orientation discrimination, and in 2016, they prosecuted their first cases for LGBT.

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