Job Discrimination based on Sexual Orientation

This could be a big year for gay and lesbian rights. The Supreme Court will hear two cases regarding equal marriage rights, one case involving the federal Defense of Marriage Act, while the other case involves a California law. Recently, the Boy Scouts of America announced that it might lift its ban regarding gay members. During his inaugural address, President Barak Obama provided his support by stating that “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law.”

Despite the recent wave of support, employment laws are still lagging behind. Current federal law prohibits discrimination based upon gender, but does not prohibit discrimination based upon sexual orientation. The Seventh Circuit Court of Appeals interpreted Title VII of the Civil Rights Act of 1964 and stated,
“The phrase in Title VII prohibiting discrimination based on sex” means that “it is unlawful to discriminate against women because they are women and against men because they are men.” In other words, Congress intended the term “sex” to mean “biological male or biological female,” and not one’s sexuality or sexual orientation. Therefore, harassment based solely upon a person’s sexual preference or orientation (and not on one’s sex) is not an unlawful employment practice under Title VII.

Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 704 (7th Cir. 2000) (citations omitted). While Title VII prohibits sexual harassment at the workplace, regardless of sexual orientation, it does not prohibit an employer from terminating an employee due solely to the individual’s sexual orientation.

State could provide the leadership for stronger laws. Approximately twenty-one states ban employment discrimination based on sexual orientation, including Illinois. Many companies have also instituted their own policies prohibiting discrimination based on sexual orientation.