Can Companies Discriminate Based on Sexual Orientation and Gender Preference? | Employment Law Tips from HR KnowledgeBase

Over the last decade, the subject of Sexual Orientation and Gender Preference has become a commonly referenced topic.  Despite the openness in our country to discuss gay and lesbian rights, many such employees have found little protection in the law from harassment and discrimination in the workplace.  However, the tide is changing and employers should cautiously approach this area.

Cheryl Orr, an attorney with Drinker Biddle & Reath LLP in San Francisco said, “Companies should include training to prevent discrimination based on sexual orientation and gender identity as part of its anti-discrimination training, even though sexual orientation discrimination is not prohibited by federal law.”

According to Orr, here’s the breakdown of current state laws:

  • Twenty-one states—California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington and Wisconsin—and the District of Columbia prohibit discrimination based on sexual orientation, according to the Human Rights Campaign;
  • Delaware, Maryland, Nevada, New Hampshire and Wisconsin prohibit discrimination based on sexual orientation but not gender identity discrimination, although Nevada’s legislature recently passed legislation prohibiting discrimination based on gender identity;
  • Florida prohibits gender identity discrimination but not sexual orientation discrimination; and
  • A number of cities prohibit sexual orientation discrimination.

“Although federal law does not currently recognize sexual orientation as a protected characteristic under Title VII, some of the conduct that HR professionals might think of as discrimination on the basis of sexual orientation is actionable under Title VII as discrimination on the basis of gender,” noted Chuck Gartland, an attorney with Alston & Bird in Washington, D.C.

Gartland said, “Sometimes a gay male employee is subject to verbal abuse and denied promotional opportunities because of what his managers perceive to be behaviors not associated with their notion of a traditional stereotypical male. Some federal courts have found that such conduct might give rise to a gender discrimination claim.”

Even if there isn’t a law in your state, city, or county prohibiting sexual orientation or gender preference discrimination, it doesn’t mean you shouldn’t take every step possible to protect employees against discrimination for sexual orientation or gender preference.  A proactive employer will take action to prevent discrimination based on factors that are unrelated to the job, even if the law doesn’t explicitly prohibit it.

What this means for employers is that the definition of ‘sexual orientation and gender preference’ should be added as factors in their harassment and discrimination policies as well as included in employee harassment and discrimination training programs.  By doing this, employers reduce their risk of being sued by employees for other legal provisions such as harassment, defamation and invasion of privacy.

If you need your harassment and discrimination policies reviewed or training developed to make sure you are taking appropriate steps in this area, contact Victoria Mavis or visit for the latest in Harassment and Discrimination Prevention Policies and Training, including Sexual Orientation and Gender Preference.


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One Response to Can Companies Discriminate Based on Sexual Orientation and Gender Preference? | Employment Law Tips from HR KnowledgeBase

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