There are several policies and laws against sexual discrimination which refers to the harassment and bullying of employees based on their sexual orientation. The Federal Fair Employment Law and Title VII of the Civil Rights Act of 1964 prohibit workplace discrimination based on sex, including the prohibition of sexual discrimination in hiring and advancement. Employees working in the Federal government are protected against discrimination based on sexual orientation and Federal laws exist which provide protection against workplace discrimination for reasons including religion, age, and race. However, there is not currently a Federal statute to provide protection for employees working in the private sector, and sexual orientation is not protected by Federal law in the way that protections are afforded to race, religion, color, age disability, and sex.
Laws and protections across states also vary, with the Atlanta US Appeals Court recently ruling that sexual orientation is not protected under Title VII of the Civil Rights Act of 1964. Due to the variances in protections across states and type of industry sectors, it is important for HR to be knowledgeable of the protections that they are legally required to provide to employees. Below are 4 things that employers need to know About the Atlanta Sex Discrimination Ruling.
Not all circuit courts agree
Despite the Atlanta ruling, it is important to note that not all circuit courts agree with that decision. Although some states have ruled that sexual orientation discrimination is not protected, many more have agreed that sexual orientation falls under the same category as sex discrimination and employees should therefore receive protections under Title VII. As employers can be heavily penalized for failing to comply with relevant state and Federal laws, it is vital that HR is knowledgeable of state laws and keeps up to date with changes in legislative efforts.
Status versus Behavior
The Atlanta ruling, handed down by Judge William Pryor, states that an employee’s status versus their behavior plays a major role in determining whether or not someone has been unlawfully discriminated against. Actions by companies that are deemed prohibited are ones which relate to behavior, where the employee can prove that action was taken against them by their company because they were seen to deviate from gender-related stereotypes. If, for example, a female employee is fired by her employer because she has a male haircut and dresses as a man would, then that would be considered grounds for a claim made against the company in question. However, adverse actions experienced by employees in private companies due to their sexual orientation status are not covered by Title VII and therefore not considered unlawful.
Laws are changing
While the U.S. Appeals court in Atlanta upheld such a ruling, it is important for HR professionals to know that Title VII related laws can soon change. The Atlanta circuit court did warn that both Congress and the Supreme Court will most probably take action in the near future to ensure that sexual orientation status will be covered by Title VII. Moreover, in recent years, the Equal Employment Opportunity commission (EEOC), has stated that it will take legal action against employers who discriminate against employees based on their sexual preference.
Although sexual orientation is not explicitly protected under Title VII, this will most likely change in the near future. HR can avoid sex discrimination by being aware of state and Federal specific policies, developing organization policies, responding to instances of discrimination in a timely manner, and providing comprehensive training to all staff in this area.
