Employment Discrimination Help

Discrimination Based On Sexual Orientation

The progressive view is that discrimination based on person’s sexual orientation has been found a form of sex discrimination on Federal level, and as such it is covered by Title VII. The EEOC has found that claims by lesbian, gay, and bisexual individuals alleging sex-stereotyping state a sex discrimination claim under Title VII. See Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011); Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (Dec. 20, 2011). New York State and New York City Human Rights law, however, unarguably protects employees from discrimination based on sexual orientation. Sexual orientation is not a protected class for purposes of Title VII's substantive anti-discrimination provision. However, federal courts are divided on the question of whether opposing discrimination based on sexual orientation can constitute protected activity under Title VII's retaliation provision. The Ninth Circuit and two district courts in the Second Circuit have answered that question  in the affirmative. Dawson v. Entek Intern., 630 F.3d 928, 936-37 (9th Cir, 2011); Swift v. Countrywide Home Loans. Inc., 770 F. Supp. 2d 483, 489 (E.D.N.Y. 2011); Martin v. New York State Dept. of Correctional Services, 224 F. Supp. 2d 434, 448 (N.D.N.Y. 2002) (Treece, M.J.). The Sixth and Seventh Circuits have reached the opposite conclusion. Gilbert v. Country Music Ass'n. Inc., 432 F. App'x 516, 520 (6th Cir. 2011); Hamner v. St. Vincent Hosp. & Health Care Center. Inc., 224 F.3d 701, 707 (7th Cir. 2000).

As one court observed : “Gender stereotyping—that is, discrimination based on the plaintiffs non-conformity with gender stereotypes—is unlawful gender discrimination under Title VII. Dawson, 398 F.3d at 218. The ostensible difference between gender stereotyping and sexual-orientation-based discrimination is that the former is motivated by the employer's animus towards the employee's outward behavior, the latter by the employee's sexual preference. Courts have candidly recognized the analytical difficulties this creates, as "stereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality." Id.; see Kay v. Independence Blue Cross, 142 F. App'x 48, 51 (3d Cir. 2005) ("The line between discrimination based upon gender stereotyping and that based upon sexual orientation is difficult to draw and in this case some of the complained of conduct arguably fits within both rubrics."). If opposition to sexual-orientation-based discrimination was not protected  activity, employees subjected to gender stereotyping would have to base their decision to oppose or not oppose unlawful conduct on a brittle legal distinction, a situation that might produce a chilling effect on gender stereotyping claims.” Birkholz v. City of New York, 2012 U.S. Dist. LEXIS 22445, *22-23, 2012 WL 580522 (E.D.N.Y. Feb. 17, 2012)

Examples of sexual orientation would be harassment based on person’s being gay, lesbian or bisexual; or when an employer (including co-workers or supervisors) assumes that a person is gay/bisexual/ lesbian or transgender. Discrimination of this kind often may take form of hostile environment when a worker is constantly being reminded that he/she is different; is on a “wrong path”; “is not worthy”, “ungodly”… Failure to treat a person equally due to his/her sexual orientation is prohibited.

For a Federal level liability, an employer has to have at least 15 employees; for the New York City and New York State levels, at least 4.

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