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Rights of Gays and Lesbians - Employment And School Fairness

discrimination sexual orientation federal

Harassment at school and in the work environment due to sexual orientation is not always legally defensible. Massachusetts, Vermont, Wisconsin and the District of Columbia have statutes that address sexual orientation discrimination in schools. Other states do not. Laws prohibiting discrimination based on sex are more common, but the victim of harassment must demonstrate that the school acted or failed to act because of the victim's sexual orientation and made a decision based on that sexual orientation. It is difficult to provide evidence to this effect.

The most prominent federal sex discrimination statutes are Title IX and Title VII. Title IX applies to sex discrimination in education or any activity receiving federal financial assistance. Courts are reluctant to interpret the prohibition against sex discrimination as a prohibition against sexual orientation discrimination, but in a few cases sexual orientation discrimination has been included.

Title VII of the Civil Rights Act of 1964 applies to sex discrimination in employment, and applies to compensation, extension of health care benefits to a spouse, and retirement. Discrimination in employment on the basis of sexual orientation is currently legal in 41 states, meaning individuals may be fired from their jobs solely because of sexual orientation, even when it has no bearing on their job performance.

Sexual harassment claims fall under this statute. Gay and lesbian cases sought to show that sexual orientation discrimination is sex discrimination. Courts rejecting this argument most commonly did so by examining the harasser's motivation. Proof of the employer/harasser's discriminatory motive is crucial to the plaintiff's case. The first lawsuits applying this standard resulted in a variety of decisions and no consistent holdings. The 1969 case of Norton v. Macy held that sexual orientation that does not affect performance on the job or the public reputation of the job cannot be the basis for discrimination. But in 1977, the Federal Appellate Court for the Ninth Circuit determined that the Equal Employment Opportunity Commissions could fire an employee for being gay because of his openness about his homosexuality. Then in March of 1998, the Supreme Court ruled in Oncale v. Sundowner Offshore Services Incorporated et al. that Title VII's prohibition aganst sex discrimination extends to same-sex sexual harassment.

Many companies and organizations extend benefits to homosexual partners of their employees despite controversy, with the list including such names as The American Red Cross, Federal Express, Barnes & Noble, Walt Disney Company, Levi Strauss, Microsoft, IBM, and Time Warner.

In June of 1998, President Clinton amended Executive Order No. 11,478, which governs equal employment opportunity in the federal government, by adding sexual orientation to the list of prohibited bases for discrimination. Executive Order No. 11,478 was first signed by President Nixon to prohibit discrimination in federal employment on the grounds of race, color, sex, religion or national origin. It was later amended to add disability and age to the list.

Clinton's amendment extends protection under the Civil Service Reform Act of 1978, which specifies that federal civilian employers cannot discriminate for or against any employee or applicant on the basis of conduct which does not adversely affect the performance of the employee or the performance of others. The Office of Personnel Management in 1980 sent a memorandum clarifying that the Reform Act of 1978 protects gay and lesbian federal employees from discrimination. The result is that federal employees have several avenues of appeal when discrimination on the basis of sexual orientation occurs.

But the implementation of policy on an agency-by-agency basis has not been uniform. The Departments of Justice, Agriculture and Transportation developed model policies with clear anti-discrimination statements backed up by clear processes to address grievances. Other agencies failed to adopt any sexual orientation discrimination policy, meaning that a federal worker with a complaint had to go to court. Gay plaintiffs usually lose when courts conclude that the employer's actions result from employee conduct, and that the two are not mutually exclusive.

Legislation proposed by four Senators to remedy the hostile workplace environment narrowly failed to pass when voted on by the 104th Congress. The Employment Non-Discrimination Act was reintroduced in the 105th Congress with 33 co-sponsors.

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