The Civil Rights Act bans sex discrimination, but does it cover sexual orientation?
The Equal Employment Opportunity Commission says it does — and it wants this position validated by federal courts. This month, the EEOC filed its first-ever lawsuits charging employers with discrimination against gay and lesbian employees.
"The commission takes the position that discrimination because of sexual orientation is intrinsically a form of sex discrimination," says David Lopez, the agency's general counsel. "I think it will help illuminate for employers their responsibilities and it will help illuminate for employees the rights."
One of the two cases alleges that a gay man working at a health clinic in Pennsylvania was subject to homophobic epithets and degrading comments about his sex life. His complaints, he says, were ignored.
The other case involves a forklift company in Baltimore, where a lesbian employee alleges that her supervisor made lewd comments and gestures, promising to turn her "back into a woman." She claims she was fired after lodging a complaint.
Greg Nevins, a workplace fairness counsel at Lambda Legal, says these are very common complaints. His organization represents LGBT issues in court and fields thousands of workplace complaints a year.
He says historically, cases like these where gay and lesbian workers bring charges do not fare well.
"Generally the courts weren't very hospitable," Nevins says.
But he says that is changing. Now 22 states and many cities have passed laws banning discrimination on the basis of sexual orientation. Nevins says in more recent years, some court decisions have ruled that sexual discrimination is a federal civil rights violation.
Sarah Warbelow, legal director for LGBT-rights advocacy group Human Rights Campaign, agrees that the tide seems to be shifting.
"If you know that you have recourse, you're going to be much more willing to go down to your HR department and have a conversation," she says.
However, many also don't believe the government agency should be rewriting the law, says Jonathan Segal, an employment attorney representing employers.
"There are some that view this as the EEOC trying to create law. I think this eventually will get to the Supreme Court, if it's not resolved by Congress beforehand," Segal says.
The employers charged in the EEOC's suits both deny the charges and say they have policies that ban discrimination, including on the basis of sexual orientation.
Eric Meyer also represents employers. He says harassment is already illegal, and most employers — especially larger ones — already have their own policies that protect LGBT workers.
"An employer may not have a specific policy or may not wish to have a specific policy to address this, but they do so at their own risk," he says.
Whatever the law is, he says, companies should train their managers and address all forms of discrimination in their policies.