Articles Posted in Sexual Orientation Discrimination

Title VII prohibits employment discrimination because of sex.  It does not, however, expressly prohibit discrimination based on an individual’s actual or perceived sexual orientation.  Recently, federal courts have started to disregard this distinction in favor of concluding that discrimination on the basis of sexual orientation is a form of sex discrimination because it inherently involves gender stereotyping.  Although the U.S. Court of Appeals for the Second Circuit, which covers New York, Connecticut and Vermont, has been reluctant to find that sexual orientation discrimination is illegal under federal law, Chief Judge Katzmann of the Second Circuit explained just last month in Christiansen v. Omnicom Grp., Inc., that sexual orientation discrimination should be considered sex discrimination because “such discrimination is inherently rooted in gender stereotypes.”  A prior opinion from the Second Circuit suggested that stereotypical “notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality.”  In light of these statements from the Second Circuit, lower courts have started to accept that federal law does, in fact, prohibit sexual orientation discrimination.

Most recently, on May 3, 2017, Judge Alvin Hellerstein of the U.S. District Court for the Southern District of New York refused to dismiss a claim for sexual orientation discrimination under Title VII in Philpott v. State of New York, insisting that sexual orientation discrimination is a form of sex discrimination because “sexual orientation cannot be defined or understood without reference to sex.” In refusing to dismiss the claim, Judge Hellerstein stated that he “decline[d] to embrace an ‘illogical and artificial distinction between gender stereotyping discrimination and sexual orientation discrimination. . . .”  The court viewed the plaintiff’s allegations as supporting a claim of gender stereotyping discrimination.  These allegations included statements attributed to the President of SUNY Optometry that referred to the plaintiff as “sensitive,” “flamboyant,” and “frenetic.”  This same official told the plaintiff that “separate but equal treatment of gay people might be best,” and that upon learning that plaintiff’s relationship with his domestic partner had ended, this official told the plaintiff that “this marriage, or whatever you want to call it, is a distraction to the College.”

A finding that Title VII prohibits sexual orientation discrimination as a form of sex discrimination would not affect employers and employees in states such as New York, Connecticut and Massachusetts that already prohibit such discrimination.  Nevertheless, the federal court’s decision in Philpott highlights that even high-level management officials in states like New York, where sexual orientation discrimination is already illegal, require workplace training to instill that stereotyping is discrimination, and cannot form the basis for workplace decisions.

Following a Senate vote earlier this week on the Employment Non-Discrimination Act (ENDA), proponents are bracing themselves for a tough fight in the House of Representatives.  ENDA proposes to prohibit employment discrimination on the basis of sexual orientation or identity in much the same way that Title VII of the Civil Rights Act of 1964 bans discrimination on the basis of  race, color, religion, sex and national origin.  Currently, 22 states, including New York, have laws that prohibit discrimination on the basis of sexual orientation.  In addition, New York City’s anti-discrimination law, which is perhaps one of the most progressive and powerful in the country, has long prohibited discrimination on the basis of sexual orientation.

Although New York State’s Human Rights Law prohibits sexual orientation discrimination, the law does not provide for the recovery of attorneys’ fees, thus making it less likely that an aggrieved employee will take advantage of the protections that the Human Rights Law provides.  Conversely, New York City’s Human Rights Law does provide for the recovery of attorneys’ fees, thus making it a far more effective statute.  In addition to prohibiting sexual orientation discrimination, ENDA would make attorneys’ fees recoverable in sexual orientation discrimination cases, thus putting it on the same footing as other types of discrimination.

Nevertheless, ENDA may not become law because House leadership has stated that it will not bring the bill to a vote.  Thus, the nearly 40 year fight that was initiated by Representative Bella Abzug’s introduction of the Equality Act may continue.


Today, Governor David Patterson signed into law, the New York Domestic Workers Bill of Rights, which reflects the first sweeping domestic workers’ rights legislation in the nation.
Among other things, the New York law provides for overtime pay to domestic workers, and protection against workplace discrimination and harassment based upon race, gender, sexual orientation, national origin, disability, marital status and domestic victim status. The legislation specifically addresses sexual harassment, which is cited as a major problem for domestic workers in New York.

The Senate and House are considering legislation to ban employment discrimination on the basis of actual or perceived sexual orientation and gender identity. The Employment Non-Discrimination Act of 2009 is intended to amend Title VII, which currently prohibits discrimination on the basis of sex, race, national origin, religious discrimination. In addition, the bills would ban retaliation against an employee for complaining of sexual orientation discrimination.

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The proposed Employment Non-Discrimination Act (“ENDA”) is a federal bill intended to address employment discrimination by making it illegal to fire, refuse to hire or promote employees based upon their sexual orientation. An earlier version of the bill sought to include protection from gender identity discrimination. That provision was stripped from the bill due to a lack of support in the House of Representatives for transgender protection. On November 7, 2007, the House passed ENDA by a vote of 235-184. Currently, ENDA awaits introduction to the Senate.

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