Sexual Orientation Discrimination
It remains unclear whether Title VII’s prohibition on sexual discrimination includes discrimination because of sexual orientation. Title VII of the Civil Rights Act of 1964 prohibits treating someone (an applicant or employee) unfavorably because of that person’s sex. The U.S. Equal Employment Opportunity Commission takes the position that discrimination against an individual because of gender identity, including transgender status, or because of sexual orientation is discrimination because of sex in violation of Title VII. For more information about LGBT-related sex discrimination claims, for more information see http://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm.
However, the EEOC does not have court decisions which back up its position. In March the EEOC issued a press release, announcing that it has brought two cases alleging that discrimination on the basis of sexual orientation is discrimination on the basis of sex under Title VII. From the press release:
The federal agency’s Philadelphia District Office filed suit in U.S. District Court for the Western District of Pennsylvania against Scott Medical Health Center, and, in a separate suit, in U.S. District Court for the District of Maryland, Baltimore Division, against Pallet Companies, dba IFCO Systems NA.
In its suit against Scott Medical Health Center, EEOC charged that a gay male employee was subjected to harassment because of his sexual orientation. The agency said that the male employee’s manager repeatedly referred to him using various anti-gay epithets and made other highly offensive comments about his sexuality and sex life. When the employee complained to the clinic director, the director responded that the manager was “just doing his job,” and refused to take any action to stop the harassment, according to the suit. After enduring weeks of such comments by his manager, the employee quit rather than endure further harassment.
In its suit against IFCO Systems, EEOC charged that a lesbian employee was harassed by her supervisor because of her sexual orientation. Her supervisor made numerous comments to her regarding her sexual orientation and appearance, such as “I want to turn you back into a woman” and “You would look good in a dress,” according to the suit. At one point, the supervisor blew a kiss at her and circled his tongue at her in a suggestive manner, EEOC alleged. The employee complained to management and called the employee hotline about the harassment. IFCO fired the female employee just a few days later in retaliation for making the complaints, EEOC charged.
It is important to remember that Colorado has its own employment discrimination statute. That statute expressly prohibits discrimination based on sexual orientation. COLORADO REVISED STATUTES, section 24-34-402.