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Sexual Orientation Discrimination Issues Take Center Stage

December 31, 2003

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 October 8, 2003, the Employment Non-Discrimination Act of 2003 ("ENDA") was re-introduced in the House of Representatives. The bill, which was first introduced in 1994, would prohibit employment discrimination on the basis of sexual orientation by employers with 15 or more employees and would also apply to employment agencies and labor organizations, but would provide exclusions for religious organizations and the military. Sexual orientation is defined under ENDA to include homosexuality, bisexuality and heterosexuality, whether real or perceived. ENDA also would prohibit retaliation based on an individual's opposition to a practice prohibited by ENDA or participation in an investigation, proceeding or hearing under the bill. The bill specifically provides for recovery only under a theory of disparate treatment, not disparate impact, and does not apply to the provision of employee benefits to an individual for his or her domestic partner. The Equal Employment Opportunity Commission would be granted the same powers to enforce ENDA as it has under Title VII of the Civil Rights Act of 1964. ENDA is currently pending before several House Committees.

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 U.S. 75 (1998), proved to be a subject of much litigation in 2003. In Oncale, the Supreme Court ruled that same-sex sexual harassment is actionable under Title VII, so long as the harassment was committed because of the recipient's sex. The Court provided three non-exhaustive examples of situations in which a court could draw the inference that harassment was because of sex: (1) if there were credible evidence that the harasser was homosexual; (2) if the harassment occurred through the use of such sex-specific and derogatory terms as to make it clear that the harasser was motivated by a hostility toward members of his or her own sex in the workplace; or (3) if the plaintiff offered direct, comparative evidence of how the alleged harasser treated members of both sexes in a mixed-sex work environment.

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, New York State's Human Rights Law was amended to include sexual orientation on the list of prohibited bases of discrimination. Under New York law, the protection from sexual orientation discrimination in employment extends to actual or perceived heterosexuality, homosexuality, bisexuality and asexuality. With enactment of this amendment, New York joins California and 12 other states (Connecticut, Hawaii, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, Rhode Island, Vermont, Wisconsin) and the District of Columbia, as well as numerous county and local governments throughout the country, in prohibiting discrimination by private employers on the basis of sexual orientation.

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.