A gay employee who alleges that he was harassed by his boss for being gay and for acting effeminately can bring a lawsuit against his employer for gender-stereotyping, a federal appeals court ruled last Monday. Gender-stereotyping in the workplace occurs when an employee is harassed for not conforming to gender stereotypes. This means that it is illegal for an employer to tell a female employee that she will not receive a promotion unless she acts more “feminine” by wearing earrings, makeup, and a feminine hairstyle. Gender-stereotyping is an illegal form of discrimination based on sex, the Supreme Court has ruled, which violates Title VII of the Civil Rights Act of 1964.
The gay employee claims that his supervisor “drew multiple sexually suggestive and explicit drawings of [the employee] on an office whiteboard” and “accused him of having AIDS” during a meeting with other employees. He also allegedly made fun of the employee’s effeminate behavior.
Interestingly, the court rejected the employee’s argument that his employer was liable under Title VII for discrimination based on sexual orientation. The court ruled that since Title VII does not explicitly state that discrimination based on sexual orientation is illegal; this claim had to be dismissed. This ruling is in line with what other federal appeals courts have ruled, but goes against the EEOC’s position, which it maintained in this lawsuit. The EEOC apparently has continued to advocate this position even with the change in administration.
While discrimination based on sexual orientation appears to still not be illegal under federal law, it is illegal under the law of a number of states, including Illinois. Given the momentum of the LGBT rights movement, it seems like only a matter of time until it becomes illegal under federal law. Therefore, it does not make sense for employers to allow harassment based on sexual orientation to occur in the workplace. Even if such discrimination is not technically illegal, it opens employers up to claims of gender-stereotyping, as well as liability under state law.
Does your employee handbook prohibit sexual orientation discrimination? Do you even remember what your employee handbook says? Contact us for help updating your employee handbook or any other workplace policy.
