Sexual Orientation Discrimination

Just days after North Carolina lawmakers passed the controversial Public Facilities Privacy & Security Act (“Act”), the American Civil Liberties Union (“ACLU”) has filed a lawsuit challenging the law.

6276693_sAlthough the title of the Act seems to imply that it just addresses the use of public restrooms, the law actually goes far beyond that.  Opponents of the Act, say that it is a sweeping attack on the LGBT community.

North Carolina legislators passed the Act after the city of Charlotte enacted an ordinance making it illegal to discriminate against people on the basis of sexual orientation and gender identity. The Act not only states that people must use restrooms assigned to their “biological sex,” it prohibits any municipality from passing certain laws regarding employment.  This means that local governments cannot pass anti-discrimination laws or laws that affect the wages of employees such as minimum wage hikes.

Many employers may like the idea of uniform state-wide consistency in the laws.  However, many businesses have already publicly condemned the law.  In some states, such as Georgia, corporations’ attacks on such laws have doomed them.  As of today, although some businesses have blasted the law, others have publicly supported it.  So far, no corporation has actually threatened to pull its business or refuse to conduct future business in the state.  It is unclear whether corporate pressure, on either side, will affect the political process.

It is also questionable whether this law as drafted will be upheld. It will be interesting to see if the courts expand the Obergefell v. Hodges decision to strike down the law as being unlawful discrimination.  The EEOC has been taking a very aggressive position that sexual orientation and gender identity are protected under Title VII’s prohibitions on gender discrimination.  If the EEOC is right that the existing federal laws prohibit discrimination on the basis of sexual orientation and gender identity, then the Act not only implicates Title VII, it implicates Title IX since it applies to public universities.  Schools found to be in violation of Title IX can lose federal funding.

Although the EEOC has been pushing the boundaries of Title VII interpretation, so far the issue of whether Title VII does in fact outlaw discrimination based on sexual orientation has not been addressed by the Supreme Court.  North Carolina lawmakers may have unwittingly pushed this issue to the Supreme Court


33190898_sI recently read an article that Wawa, Inc. has been sued by a former employee who alleges that she was discriminated against on account of being gay.  What was interesting about the article was what she alleged about how the harassment supposedly started.

The employee alleges that she participated in Wawa’s Gay Straight Alliance.   She says that as soon as her supervisor was made aware of her involvement with the Alliance that he began punishing her — taking away her flex benefits and changing her work location.  The employee also claims that he made fun of National Coming Out Day.

What is alleged in the complaint is a fairly common description of bullying or harassment that we see in complaints.  What makes this unusual is that one of the reasons she was allegedly bullied was on account of her participation in Wawa’s diversity program.  This program seems designed to combat prejudices and to work towards making a more inclusive environment for homosexual employees.

If this complaint is true, then at least one manager did not get the message that this was an important initiative to the company.

Diversity programs can be met with resistance by some employees who believe that the diversity program is giving minority employees more benefits than them, rather than simply leveling the playing field.  Nothing exemplifies this more than the reaction by some to the Black Lives Matter campaign that has been posted in social media.  In response to the campaign, some reacted by posting signs like All Lives Matter.  Clearly, those who posted these signs felt that to say Black Lives Matter meant that other lives did not matter as much, rather than seeing it as an attempt to address perceived racism against black people.  Perhaps if the message was Black Lives Matter Too, people might have understood the message better.

How the message is communicated definitely matters, but it is only one obstacle to a successful program.  For diversity programs to truly work, there must be a commitment to them from the very top of the organization.  There also should be outreach and training to all employees to explain the initiative, demonstrate that the company will not tolerate discrimination, and combat perceptions of reverse discrimination.

There has been some immediate fallout from the Supreme Court’s gay marriage decision in Obergefell v. Hodges.  The decision has become a lightning rod for several Republican candidates who have denounced the decision on religious grounds.  Some, such as Ben Carson, have suggested that Congress pass a law protecting people’s religious views.  Of course, there are already several laws protecting people’s religious views, the First Amendment and the Religious Freedom Restoration Act of 1993 to name a few, but I digress.

19321926_sThe bigger issue and one everyone seems to be forgetting is that these types of “religious belief” arguments to justify discrimination have already been rejected by the Supreme Court.  The Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc. seems to have opened the door for employers to argue that their religious beliefs conflict with certain legal requirements (in that case providing insurance coverage for contraception, but easily analogized to gay marriage).  However, in Hobby Lobby, Justice Alito specifically noted that religious beliefs could not be used to justify discrimination:

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. . . . Our decision today provides no such shield.  The Government has a compelling interest in providing an equal opportunity to participate in the work force without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”

It is true that federal law does not explicitly protect sexual orientation.  However, as we have reported the EEOC has become increasingly focused on same-sex harassment and sexual orientation discrimination as a form of gender discrimination.  Further, many state and local anti-discrimination laws do define sexual orientation as a protected class.

This can be a confusing area for employers since Title VII and many state and local laws require that an employer accommodate a sincerely-held religious belief.  Quite simply, employers cannot justify an employee’s discrimination against gay people because homosexuality is against that employee’s religious beliefs.  Employees must still comply with anti-discrimination laws even if they have a religious objection to homosexuality.

13799015_sEarlier today, the United States Supreme Court in its decision in Obergefell v. Hodges rendered same-sex marriage as the law of the land in all 50 states.  This blog is not about the wisdom or reasoning of the decision (for analysis on that you can check out, well, basically anywhere else on the web).  But regardless of your feelings, all employers must make very minor modifications to their policies to ensure that they are in compliance with what is now unquestionably federal law.

Most tellingly, the definition of “spouse” now must be modified in states that previously did not recognize same-sex unions.  If you consult your employee handbook you will likely find the word in numerous places under such topics as medical leave, conflict of interest, and equal opportunity (many jurisdictions, including my home state of New Jersey, recognize marital status as a protected classification in employment discrimination laws).  We recommend that all handbooks be updated periodically to allow for new developments in the law that can render your policies outdated.

Finally, remember that any discussion of the case and its significant ramifications should be limited in the workplace.  We’ve talked before about how even well-intentioned discussion of current events can give rise to a claim of discrimination.  Be mindful of the impact of these types of discussions on LGBT employees and their straight allies.


For those people who may have been living under a rock or enjoying an extended Tom Hanks-like vacation on a desert island a la Cast Away, the Supreme Court is set to hear argument in four petitions that challenge state laws in the 6th Circuit banning gay marriage.  It is widely anticipated that the Justices will finally squarely confront whether banning gay marriage violates the Equal Protection Clause.

17951947_sThe road to the Supreme Court was paved largely by US v Windsor, which struck down the Defense of Marriage Act as a violation of the Fifth Amendment.  The decision opened the door for many  courts to strike down gay marriage bans. However, states promoting the bans have argued that the Windsor decision makes clear that it is up to states to decide what is a valid marriage and those states could choose to define marriage as only being between a man and a woman.  Adding to the confusion is the fact that several states, in an effort to get around the Full Faith and Credit Clause which generally requires states to recognize the legal actions of other states, passed constitutional amendments defining marriage as being only between a man and a woman.  A “my constitution trumps yours” argument.

Without a decision based on the Equal Protection Clause, it is likely that there will remain conflicts over the issue.  As of today, there are still 13 states in the U.S. where gay marriage is illegal.  One of the states where it is legal, Alabama, has become a bit of a constitutional battle ground with a federal court declaring the ban on gay marriage illegal and the state’s Supreme Court issuing an order prohibiting clerks from issuing marriage licenses to same-sex couples.

It is widely anticipated that the Supreme Court’s decision will be in favor of gay marriage.  Although the plaintiffs in the case are taking no chances and have pulled out the big legal guns.  Lawyers for gay and lesbian plaintiffs have chosen Mary Bonauto, the movement’s pioneer, to argue the case.

Employers should be aware that if the decision is in favor of gay marriage, it may have an immediate impact on policies and benefits.  For example, under the FMLA, a spouse would be defined as including same-sex spouses.  The Supreme Court’s decision is not expected until June.  We will let you know as soon as it is decided.

A newly filed EEOC charge alleges that The Holy Family Catholic Community in Inverness, Ill fired its 17-year music director when the director announced on Facebook that he had just become an engaged to his male partner.  This, according to the Portland Press Herald.


gay weddings : Closeup of a gay couple holding hands, wearing a wedding ring. Couple is a hispanic man and a caucasian man.

The director, who alleges sex, sexual orientation and marital status discrimination, stated that he was told that “his same-sex relationship violated the tenets of the Roman Catholic Church.”

The Archdiocese of Chicago declined comment.

An Earlier Case

This case is strikingly similar to one we wrote about last February.

The Boston Globe and reported what then may have been a legal first – a case filed with the Massachusetts Commission Against Discrimination (MCAD) against a religiously affiliated college prep school by a gay man who claimed that his offer of employment was withdrawn after the school discovered that he listed a “husband” as his emergency contact.

The applicant was offered a job as food services director, but claimed that a school official said that “the Catholic religion doesn’t recognize same-sex marriage, and that was her excuse.  She said, ‘We cannot hire you.’  If I’m planning and making meals for students, I’m not sure what my being gay has to do with the job. All I did was fill out the form honestly.”

He alleged sex and sexual orientation discrimination.

His attorney said that “There is a balance between important values, which are religious liberties, and discriminatory practices. This is a job that has nothing to do with religion . . . and this weighs toward discrimination.  Religiously affiliated entities do not have a free pass to do as they please in how they treat employees, particularly when it comes to our important laws against discrimination.”

The Ministerial Exception

Both cases involve what is called the “ministerial exception.”

On January 11, 2012, we reported about a significant First Amendment religious freedom decision involving the “ministerial exception” which was decided that day by the Supreme Court, Hosanna-Tabor Church v. Equal Employment Opportunity Commission.

The Court had before it a teacher in a religious institution who taught both secular subjects and a class in religion. When she threatened to file a charge of disability when a new teacher was hired to replace her, she was fired for insubordination. Her case involved a head-to-head confrontation between First Amendment religious freedom and the anti-discrimination employment laws.

At issue before the Court was the definition of “minister,” because” the “ministerial exception” holds, in effect, that the government should not get involved in internal church affairs involving “ministers,” and therefore courts should not become embroiled in lawsuits involving “ministers.”

The unanimous Court held that the religious institution must be free to choose its own ministers without state involvement: “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important,” but “so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.”

Non-Ministerial Duties

In a post in June 2013, we reported that the Roman Catholic Archdiocese of Cincinnati fired a non-Catholic computer teacher in a parochial school allegedly for violating an employment contract requiring her “to conform with Catholic doctrine, which considers pregnancy out of wedlock through artificial means ‘gravely immoral.’”

Did the ministerial exception apply to her and thus permit her firing?

Plaintiff was a female non-Catholic, gay, unmarried parochial school computer teacher. She claimed that she was fired for being pregnant and unmarried.  Prior to trial, the archdiocese lost a motion based upon the recognized “ministerial exception,” since although Plaintiff was a non-Catholic (and thus did not conform to “Catholic doctrine”) she taught only computer classes (and not, for example, religion classes) and was even barred under church rules from teaching religion to her elementary school students.

Therefore, since she did not have ministerial duties in teaching computer classes, the exception did not apply, and a federal jury in Ohio agreed with her and awarded her $171,000 in damages and back pay.

The anti-discrimination laws trumped religious considerations in that case.

With respect to the Massachusetts case in early 2014, a Boston lawyer, Nancy Shilepsky, was quoted as saying that “Our Supreme Judicial Court takes a serious look at issues involving religious liberty and at issues involving discrimination.  They are careful to try to strike the appropriate balance.”


“Balance” and “accommodation” are always key in analyzing religious discrimination cases, or cases where religious practices are involved.


Although sexual orientation discrimination is not prohibited under Title VII, same-sex sexual harassment is  —  as a species of gender-based sexual harassment.  The distinction is important.   (While Title VII affords no protection against discrimination based upon sexual orientation, an increasing number of states and municipalities have passed such laws, such as NYS and NYC.   See our post of June 27, 2013).

The EEOC, having sued a bank for same-sex sexual harassment, just agreed to accept a settlement of the case for $290,000.

sexual harassment : Serious business woman making stop sign over white background. Focus on hand

The EEOC alleged that both a female manager and a female bank teller subjected four female employees to “graphic sexual comments, gestures and images. The harassment included inappropriate touching and a suggestion that the bank tellers wear sexually provocative clothing to attract customers and to advance in the workplace.”

The EEOC San Francisco Regional Attorney said that the bank “could have immediately nipped this behavior in the bud. We are hopeful that the settlement terms will ensure a quicker response going forward.”   Another EEOC attorney said that “Sexual harassment is illegal, regardless of whether the harasser is female or male, the same or opposite gender as the victim.”

This is not the first time that the EEOC has sued — and settled such cases.  As we posted this past June 13th, the EEOC settled a case with a North Carolina private security and public safety for $155,000.  In that case, a class of male employees was allegedly subjected to sexual harassment by the company’s male captain and male lieutenant:   “the captain ma[de] offensive sexual comments to his male subordinate employees [–] soliciting nude pictures from them; asking a male employee to undress in front of him; and soliciting male employees for sex. The captain and lieutenant also allegedly forced male employees to accompany them to a gay strip club while on duty. The complaint further alleged that the captain touched the chests and genitals of some of the male employees and offered promotions to certain male employees in exchange for sex.”

This was similar to a case case we wrote about on April 2nd, where a New Mexico car dealership agreed to pay over $2 million, along with “a very strong consent decree,” to settle an EEOC same sex sexual harassment (and retaliation) lawsuit  on behalf of over 50 men.  The complaint there alleged that for ten years company managers “subject[ed] a class of men to egregious forms of sexual harassment, including shocking sexual comments, frequent solicitations for oral sex, and regular touching, grabbing, and biting of male workers on their buttocks and genitals.”

The EEOC’s General Counsel Lopez said then that “This settlement serves to remedy the egregious sexual harassment that the EEOC alleged the men were subjected to … It also raises awareness that all employees, male and female, are entitled to work in an environment free of sexual harassment and retaliation.”



On June 16th we issued an “Alert!” when Reuters reported that “President Barack Obama will sign an executive order barring federal contractors from discriminating on the basis of sexual orientation or gender identity.”

It has finally been announced that the President will sign such an order today as tweeted by Valerie Jarrett, senior adviser to the President:  “This Monday, Pres Obama will sign an Executive Order protecting #LGBT workers from employment discrimination #OpportunityForAll.”


This comes in the midst of the furor over the effect of the Hobby Lobby decision of the Supreme Court on the support for ENDA by LGBT groups.   More is sure to follow – soon.

12:30 pm — The New York Times reported this morning that the President indeed signed the executive order.     “But Mr. Obama rebuffed requests by religious groups to exempt them.   Religious groups argued that they should not be forced to go against their beliefs in order to win or keep federal contracts available to others.   Advocates for religion said the order would lead to a court fight.”


A new YouGov/Huffington Post survey on employment discrimination against homosexuals has some interesting statistics.  The most startling is that by a 62% to 14% margin, the American public believes that it is currently illegal to fire an employee for being gay or lesbian.  Other results are below, without comment.

Wanna see the results broken down by age, gender, party identification, race, region and income? These stats can be found here. 13225132_s

Would you favor or oppose a law prohibiting job discrimination by employers against gays and lesbians?

Strongly favor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33%
Somewhat favor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..17%
Somewhat oppose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ….16%
Strongly oppose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..22%
Not sure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12%

Do you think it should be legal or illegal for an employer to fire someone for being gay or lesbian?

Legal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12%
Illegal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76%
Not sure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12%

To the best of your knowledge, would you say it is currently legal or illegal under federal law to fire someone for being gay or lesbian?

Legal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14%
Illegal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62%
Not sure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25%