Sexual Orientation Discrimination in the Workplace

Workers who were targeted for harassment because they were perceived to be gay, lesbian or transgender historically had little recourse against cruel and harmful harassment.

Gays, lesbians and transgender workers are not specifically mentioned as a “protected class” under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion and national origin. And  federal anti-harassment laws do not  protect workers unless they are members of a protected class.

However, the U.S. Supreme Court on June 15, 2020  by a vote of 6-3 held the prohibition against sex discrimination in Title VII of the Civil Rights Act includes discrimination based on sexual orientation and gender identity. The decision, written by Justice Neil Gorsuch, states that under Title VII “[a]n individual’s homosexuality or transgender status is not relevant to employment decisions … [and] it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

The tide began to turn in 2014 when the  U.S. Equal Employment Opportunity Commission (EEOC) unilaterally decided that Title VII’s “broad prohibition of discrimination” on the basis of sex “will offer coverage to lesbian, gay and bisexual individuals in certain circumstances.”

The EEOC ruling was made in a case filed by Leon Brooker, a  clerk at a U.S. Postal Service distribution service in Atlanta, GA, who was forced to wage a lonely but important legal battle to be free from sexual orientation harassment.

In 2011, Brooker filed an EEOC complaint alleging that coworkers and customers made allegations on Nov.24, 2010 regarding his sexual preference, including that he is gay and frequents gay clubs and bars.

An Administrative Law Judge (ALJ) summarily dismissed Brooker’s complaint, ruling the incident was not sufficiently severe or pervasive to state a viable claim of harassment. The EEOC Commissioners initially affirmed the ALJ ruling on appeal but later overturned  it after Brooker  sought reconsideration.

Brooker presented evidence that he was harassed on a daily basis for 11 years.  Brooker said he consulted an equal employment opportunity officer in 2005 about sexual orientation harassment.

The EEOC concluded in 2013 the court record showed the harassment suffered by Brooker was not a “one day” occurrence, that Brooker was the victim of a hostile workplace environment based on sex,  and the EEOC ordered the postal service to halt the harassment.

But the harassment of Brooker continued.

Brooker filed another EEOC complaint, this time alleging that he was repeatedly called “fag” and “faggot” by co-workers. He said his supervisor not only did nothing to stop the harassment but, referring to the clerk, said during a staff meeting that some “folks” should not watch other “folks get undressed.”

The co-workers and the supervisor denied making derogatory comments about Brooker’s sexual orientation and an ALJ summarily dismissed Brooker’s complaint  on the grounds that Brooker failed to establish that he was subjected to a hostile work environment.  The ALJ said Brooker “did not show that any of the comments were directed toward his status as a male” and that the comments “appeared to be directed toward his sexual orientation.” The ALJ said harassment on the basis of sexual orientation was  not covered by EEOC regulations.

Title VII ‘s prohibition against sex discrimination covers harassment of lesbian, gay and bisexual workers – EEOC

The EEOC overturned the ALJ ruling on November 18, 2014, holding that Title VII’s “broad prohibition” against sex discrimination “will offer coverage to lesbian, gay and bisexual individuals in certain circumstances … we find that Complainant’s claim of harassment based on his  ‘perceived sexual orientation’ is a claim of discrimination based on the perception that he does not conform to gender stereotypes of masculinity, and therefore states a viable claim under Title VII’s sex discrimination prohibition.”  The ruling effectively brought sexual orientation harassment within the ambit of Title VII’s prohibition against sex discrimination.

Carol R. Miaskoff, acting associate legal counsel for the AARP, in 2015 cited the Brooker case, among others, to establish the proposition that intentional discrimination, including harassment based on an individual’s sexual orientation, can be proven to be grounded in sex-based norms, preferences, expectations, or stereotypes and thus violates Title VII’s prohibition on discrimination because of sex. This comment would seem embrace all forms of discrimination in the workplace directed against gay, lesbian and transgender workers.

Homophobic Slurs

The EEOC also discussed the significance of homophobic comments in the workplace in its 2014 ruling.

Courts have selectively recognized that some ethnic, sexist and racial slurs contribute a hostile workplace environment but they have been slow to extend this reasoning to ageist and homophobic comments.

The  EEOC held that “[T]he words “fag” and “faggot” were historically used in the United States as a highly offensive, insulting, and degrading sex-based epithet against gay men.  Additionally, the words “fag” and “faggot” are offensive, insulting, and degrading sex-based epithets historically used when a person is displaying their belief that a male is not as masculine or as manly as they are.”

Hopefully, Brooker will not have to file a third EEOC complaint.

One thought on “Sexual Orientation Discrimination in the Workplace”

    Friends in the greater DC area have reported that as late as 2015, Trader Joes has terminated transgender employees due to allegations brought that they were sexually harassing women. Since these friends are gay transgender (i.e., f to m gay-oriented transgender men – and “man” is the proper noun), these allegations make about as much sense as accusin g them of harassing a fluffy big pink bunny rabbit. That is, next to nil. What is more, when contronged with such absurd alleations, a gay transgender male is put in a position of extreme emotional distress and really cannot effectively answer or defend himself. The obvious question arises: WHO IS BULLYING WHOM? Employers – in this instance Trader Joe’s, which has a very spotty record on employment discrimination period in spite of its rushes faux offense to prove the oppositve, immediately acts to CYA and terminates the transgender person.
    This is very much akin to a person who has spent a lifetime working as an arm of various legal teams to defend the rights of blacks and minorities (including the most famous or infamous of the Black Panhers) being wrongfully accused by black cowokers of being racist. And terminated without even being given any opportunity to defend himsef – when everything beingsaid against him is an outright distortion or deliberate lie. Such individual being an extension of a team of attorneys falls under the umbrella obligation of attorney-client privilege and is barred from revealing any details which prove he beyond any doubt that said individual is anything but a racist. The net affect is that neither the transgender employee nor the legal employee are able to effectively defend themselves without revealing sensitive information which would jeopardize many of those he loves – and justice itself. You want to talk about a real double double bind?
    Under “normal” condtitions, both of these individuals would have very strong employment discrimination cases. But since sensitivities prevent them from even asserting a defense, there will never be any litigation. As if either of these people ever wanted to be involved in liitigation. Talk about being complel misconstured and misinterpreted.
    Note hat the discussion below of Title VII does not even mention TRANSGENDER persons? The below discussion may be supeceded by more recent progress; his was the latest information I could locate. I certainly hope so.
    CHAITY begins at home. May we suggest that you take a good look in the mirror this morning? Start empathy now. No law is worth a hoot if people only move to protect their own interests and CYA and compleely miss he biger picture. That barking dog at your door might just be trying to tell you something.
    Start empathy now.

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