More courts are holding that sexual orientation is a protected characteristic under federal civil rights law.
Generally, employees in the United States are at-will. This means that unless that they have an employment contract, they can be fired for any non-illegal reason. For example, your boss could fire you simply because he dislikes the way that you dress. But if you are terminated because you dress that way because you belong to a protected class, then your employer may have violated the law — and your firing may have been illegal.
As an experienced employment discrimination lawyer can explain, Title VII of the federal Civil Rights Act of 1964 protects employees from workplace discrimination. Title VII makes it unlawful for an employer to discriminate with respect to the terms and conditions of employment based on an employee’s race, color, religion, sex or national origin. Although some states, like California, specifically protect employees’ from discrimination based on sexual orientation, it is not mentioned in Title VII itself. Over the past several years, both the Equal Employment Opportunity Commission (EEOC) and some federal courts have interpreted the Civil Rights Act to cover discrimination on the basis of sexual orientation. Specifically, they have determined that discrimination because of sexual orientation is a type of sex discrimination.
Recently, a federal court of appeals found that an employer violated Title VII by discriminating against an employee because of his sexual orientation. In Zarda v. Altitude Express, a skydiving instruction named Donald Zarda was fired after telling a client that he was gay. He filed a lawsuit against his employer, and the lower courts all found that his claims could not be supported under Title VII. However, the full panel of the Second Circuit overturned this ruling, holding that sexual orientation is part of sex. Discrimination on the basis of sexual orientation necessarily involves sex stereotyping, and discriminating against employees for associating with someone of a particular sex. In this way, the Court was able to expand Title VII to include discrimination against employees for their sexual orientation.
According to a seasoned employment discrimination lawyer, there is not widespread agreement among federal courts about whether sexual orientation discrimination qualifies as illegal discrimination under Title VII. However, there are a number of theories that a skilled employment discrimination lawyer can asset if you have been discriminated against because of your sexual orientation. For example, your attorney could also claim that you were discriminated against because of your failure to conform to gender stereotypes or because of your association with a member of the same sex. Alternatively, depending on where you live, your employment discrimination lawyer may be able to file a state law claim.
At PLBH, we have more than 50 years of experience helping employees who have experienced discrimination or harassment at work. Contact us today at (800) 435-7542 or info@plblaw.com to schedule a consultation with a skilled employment discrimination lawyer.