Employees who are gay, lesbian, or bisexual have greater protections under the law than at any time in our history. Laws in the District of Columbia and the State of Maryland explicitly outlaw discrimination on the basis of sexual orientation. In those jurisdictions, employers may not discriminate on the basis of sexual orientation in consideration of hiring, firing, promotions, or other whom they will hire for a job, deciding who they will fire, promote, or give raises or benefits, and in other aspects of employment.
While federal law does not explicitly prohibit discrimination on the basis of an employee’s sexual orientation, Correia & Puth and other employee advocates have successfully used federal laws such as Title VII of the Civil Rights Act to apply prohibitions on discrimination on the basis of sex to sexual orientation discrimination. In many cases, current federal law that protects against sex discrimination may be asserted to protect the rights of lesbian, gay, or bisexual individuals. Laws and policies that discriminate on the basis of sexual orientation should be subject to heightened scrutiny under the Constitution’s equal protection guarantee just as are laws that discriminate on the basis of sex.
Correia & Puth attorneys work to hold employers accountable when they use an employee’s sexual orientation as a factor against them at work. We have represented employees subjected to sexual orientation discrimination under both state and federal law. We have negotiated on behalf of workers who experienced sexual orientation discrimination in violation of Title VII and local laws such as the District of Columbia Human Rights Act and the Montgomery County (Maryland) Human Rights Act. We have the experience and commitment to fight employers who use sexual orientation bias to fire lesbian, gay, and bisexual employees or keep them from advancing in their careers.
“We believe that no employee should be fired, shortchanged, or treated differently by an employer because of who they are and whom they love. That is why we fight to ensure our clients have a fair chance to earn a living in a workplace free from discrimination.”
Explicit protections against discrimination on the basis of an employee’s sexual orientation continue to grow. As of late 2015, 22 states and the District of Columbia offer explicit protections to lesbian, gay, and bisexual employees. Pursuant to United States Department of Labor rules, federal contractors and subcontractors are explicitly prohibited from discriminating on the basis of sexual orientation. The U.S. Equal Employment Opportunity Commission has held that the existing civil rights law banning sex discrimination also bars sexual orientation-based employment discrimination. Title VII of the Civil Rights Act of 1964 bans discrimination on the basis of sex, among other protected categories, and this protection can afford employees a shield from discrimination based on their LGBT status.
While Title VII does not explicitly prohibit employment discrimination based on sexual orientation, it does prohibit discrimination based on sex and courts have recognized protections for LGBT plaintiffs under Title VII in the context of this prohibition. In 2017, in Hively v. Ivy Tech Community College of Indiana, the full Seventh Circuit Court of Appeals ruled that workplace discrimination based on sexual orientation violates Title VII. The decision made the Seventh Circuit the highest federal court to reach this conclusion, overruling previous Seventh Circuit precedent by deciding the case en banc. The U.S. Supreme Court in Price Waterhouse v. Hopkins held that discrimination based on sex stereotyping and the failure to conform to traditional gender stereotypes in appearance and conduct, for example dressing or acting too masculine or feminine, is prohibited under Title VII. In Oncale v. Sundowner Offshore Services, Inc., the Court further expanded Title VII jurisprudence, finding that sexual harassment is not limited to harassment by members of the opposite sex, but includes same-sex harassment as well.
These Title VII cases, along with recent Supreme Court precedent regarding marriage between same-sex couples, continues to bolster protections under the law. For example, because of the Supreme Court’s decision in United States v. Windsor, where the Court overturned as unconstitutional Section 3 of the federal Defense of Marriage Act, which prohibited the federal government from recognizing legal marriages between same-sex couples, federal employment benefits are now available to opposite-sex and same-sex married couples. This includes leave available under the Family and Medical Leave Act.
Additionally, in June 2015, the Supreme Court issued a landmark decision in Obergefell v. Hodges holding that same-sex couples have a fundamental right to marry and that no state may abridge that right to do so. In its decision, the Supreme Court recognized that the Constitution’s protections extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. Although Obergefell does not address employment discrimination, language in the opinion that emphasizes equal treatment for all under the law may be used to support a broad interpretation of Title VII’s prohibition of sex discrimination to protect lesbian, gay, and bisexual employees.
To ensure that these protections explicitly apply to all workers, the Equality Act was introduced in Congress and would make these prohibitions explicit in Title VII, as well as other civil rights statutes that cover equality in housing, public accommodations, federal funding, credit, education, and jury service. The Equality Act would provide basic protections against workplace discrimination on the basis of sexual orientation and gender identity. With leadership from civil rights organizations and the National Employment Lawyers Association, the Equality Act was introduced and if passed would ensure that LGBT individuals are not excluded from our nation’s anti-discrimination laws.
If you are filing a charge of discrimination based on sexual orientation with the EEOC or a state or local agency, you should identify the discrimination as discrimination based on sex, if the form does not provide for a specific notation of sexual orientation discrimination. Correia & Puth can help you with this process, and assess your rights and possible courses of action.
A target of sexual orientation discrimination may recover lost wages and compensatory damages for emotional suffering. In some cases, employees may receive awards of punitive damages, or can be reinstated to their jobs or promoted to their rightful place if it was denied due to an employee’s status as lesbian, gay, or bisexual. In successful litigation, whether after filing a lawsuit or through a settlement agreement, an individual may also recover reasonable attorneys’ fees and costs.
Whether you are currently suffering from harassment or discrimination on the basis of your sexual orientation, or have been subjected to it in the past, Correia & Puth, PLLC can help you seek justice and remedy the rights being violated. We work zealously to represent clients to seek a fair and just resolution with employers. Please call us at 202-602-6500 or contact us today.