Sexual Orientation Discrimination Issues Take Center Stage
Debate concerning the rights of gays and lesbians was at the forefront of national news during 2003. On June 26, 2003, the United States Supreme Court handed down a landmark decision in Lawrence v. Texas, 123 S. Ct. 2472 (2003), ruling that a Texas criminal statute which prohibited certain sexual conduct between individuals of the same sex was an unconstitutional infringement of liberty interests protected by the Due Process Clause of the Fourteenth Amendment. Thereafter, Massachusetts took center stage on the issue of the rights of homosexuals when the Supreme Judicial Court of Massachusetts ruled in November 2003 that the state's ban on same-sex marriages violated the state's constitution. The court's decision in Goodridge v. Department of Public Health, 440 Mass. 309 (2003), gave the state legislature 180 days to come up with a solution to allow same-sex couples to marry . In the employment law arena, as well, 2003 saw significant developments relating to issues of sexual orientation.
Although there is currently no federal law prohibiting discrimination on the basis of sexual orientation in private employment, there is a bill pending in Congress that, if enacted, would institute such a prohibition. On
Although courts have consistently held that Title VII does not prohibit sexual orientation discrimination, the application of the Supreme Court's related decision in Oncale v. Sundowner Offshore Servs. Inc., 523
While the decision in Oncale appeared to open the door to same-sex harassment claims, subsequent cases reveal that plaintiffs have had difficulty raising an inference that same-sex harassment was undertaken because of sex (which is actionable), rather than because of the plaintiff's actual or perceived sexual orientation (which is not). For example, in King v. Super Service, Inc., No. 01-6143, 2003 WL 21500008 (6th Cir. Jun. 26, 2003), the U.S. Court of Appeals for the Sixth Circuit affirmed the granting of summary judgment to the defendant-employer on the plaintiff's same-sex harassment claim. The plaintiff claimed to have been subjected to harassment which included the use of derogatory terms for "homosexual" and physical abuse. The court rejected the plaintiff's claim that the alleged abuse was because of his sex, noting that there was no evidence that the alleged harassers were motivated by sexual desire for the plaintiff. The court also found that the alleged harassers' comments were directed at the plaintiff not because of his sex, but because of their perception that the plaintiff was gay. Plaintiffs in a number of other federal cases decided in 2003 have similarly failed to raise an inference of same-sex harassment based on their sex. See, e.g., McCown v. St. John's Health Sys., Inc., No. 03-1478, 2003 WL 22658188 (8th Cir. Nov. 12, 2003); Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058 (7th Cir. 2003); Mann v. Lima, C.A. No. 02-088S, 2003 WL 22382934 (D.R.I. Oct. 10, 2003).
While federal employment laws do not prohibit sexual orientation discrimination, such claims are cognizable under the laws of many states and municipalities. Notably, effective in January 2003,
Given that employment discrimination on the basis of one's sexual orientation is illegal under many state and local laws, and that federal lawmakers continue to press for passage of ENDA (which would likewise make it illegal under federal law), employers are well advised to treat claims of sexual orientation discrimination just as they would a claim of sex-same discrimination or any other form of unlawful discrimination. Claims should be investigated promptly, and employers should take remedial action where appropriate to prevent further harassment or discrimination. In addition, employers (and particularly those with employees in New York, Connecticut, California or other jurisdictions with statutes prohibiting employment discrimination on the basis of sexual orientation) should be sure to include in their harassment policies an express prohibition on conduct that could be construed as harassment or discrimination on the basis of one's sexual orientation.