Sexual orientation is not covered under Title VII, although many states and municipalities do include this in their anti-discrimination statutes. Many predict, however, that it is only a matter of (a short) time before Title VII covers sexual orientation.
A case out of New Zealand gives us a foreshadowing of what we might expect by way of the nature of such harassment if/when sexual orientation becomes covered. As we have seen with regards to race discrimination, there are certain epithets and offensive remarks that are repeated in case after case (see our post of February 4, 2013, as well as many others). In age discrimination cases employers are very creative in using code words or “synonyms” for age, for which they get sued. See our list of such creativity in our post a few days ago.
The New Zealand Herald reports that a couple who had hired a gay man as a caregiver for their disabled son were apparently angry that the caregiver allegedly had failed to perform some outdoor work when they were on vacation, with the house messy and the bed unmade, and dead flies “scattered about.”
“A confrontation unfolded, with the boy’s mother calling the caregiver ‘disgusting’ and a ‘f***ing faggot.’ She also made a limp-handed gesture, which the ERA [Employment Relations Authority] said was offensive to gay men, and mocked him for crying.”
He was awarded a total of $13,571.56, including lost wages and costs.
“The ERA found some of the couple’s claims [i.e., defenses] were ‘fanciful’ and agreed the caregiver had been sexually harassed and constructively dismissed. It noted the woman’s claim she was not homophobic – and suggested she would be ‘well advised’ not to use the language or behaviour she admitted to.”
From this article we cannot determine whether as a gay man he was in a protected class under New Zealand law (i.e, whether sexual orientation is covered under the law), or simply whether the facts supported a claim for sexual harassment.
Can anyone help us with this question?