The Fight Against Sexual Orientation Discrimination


With the Supreme Court’s decision to allow same sex marriage, the discussion about sexual orientation discrimination has been brought to the forefront. Up until this point sexual orientation discrimination in the United States has been a somewhat murky area of the law, with no clear language under the Civil Rights Act of 1964 explicitly prohibiting it. In response to this renewed discussion the EEOC ruled on July 15, 2015, that sexual orientation discrimination was already illegal under Title VII of the Civil Rights Act of 1964. This was looked at as groundbreaking decision and meant that discriminating against gay, lesbian or bisexual workers was illegal in the U.S. on a Federal level. Many states have their own laws against sexual orientation discrimination including New Hampshire and Massachusetts.

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The EEOC’s July 2015 Decision

The EEOC made clear with its recent announcement that they found sexual orientation discrimination to be unlawful. Here are some other important facts you need to know about the EEOC’s July 15th ruling:

  • The EEOC’s decision only applies directly to federal employees. However, since the EEOC investigates claims in private employment from across the country as well, its reasoning will be likely be applied in these instances as well.
  • As of now, there is no federal legislation prohibiting sexual orientation discrimination. The Supreme Court would have the ultimate say in any sexual orientation discrimination case that reached its bench, but would likely weigh the EEOC’s recommendation heavily.
  • The EEOC made the decision that sexual orientation discrimination was unlawful under the Civil Rights Act of 1964 because sexual orientation was an inherently sex based consideration.
  • The EEOC supports its decision based on three main facts, according to Buck Consultants:
    • Sexual orientation is “premised on sex-based preferences, assumptions, expectations, stereotypes, or norms.”
    • Discrimination based on sexual orientation is “associational discrimination on the basis of sex,” analogizing sexual orientation discrimination to race-based discrimination.
    • Sexual orientation discrimination impermissibly relies on gender stereotyping. In support of that proposition, the EEOC relied heavily on a 1989 Supreme Court ruling that held that a plaintiff can rely on gender-stereotyping evidence to show that discrimination occurred.

Sexual Orientation Discrimination in the U.S.

“According to a study released in 2007 by the National Gay and Lesbian Task Force, 85% of LGBTQ Asian-American survey respondents said they had experienced racial discrimination, 75% said they had experienced discrimination based on sexual orientation, and 44% said they had experienced discrimination based on gender expression,” reported NBC News.

While the EEOC’s decision was a huge step forward in the fight for LGBT equal rights, there is still work to be done. As the New York Times wrote, “Some activists argue that, as the law stands today in most states, gay Americans ‘can be married at 10 a.m., fired from your job by noon and evicted from your home by 2 simply for posting that wedding photo on Facebook,’ as Chad Griffin, the president of the Human Rights Campaign, said in a recent television interview.” And according to RH Reality Check there are at least eight states in which the law requires teachers to present biased, intolerant and skewed information.

Yet, the positive progression in states attitudes and laws can’t be ignored. In the early 90’s there were only two states that had laws prohibiting sexual orientation discrimination. Today there are 22 states with laws prohibiting the practice, including New Hampshire and Massachusetts.. Add that to the recent ruling by the EEOC and the Supreme Court’s decision to allow same sex marriage and it looks like attitudes may be shifting for the LGBT community. But if history is any indication, change takes time. And the fight to end discrimination based on sexual orientation is not yet over. But it has won a huge and resounding victory, thanks to the EEOC.

Cases of Sexual Orientation Discrimination in the News

Unfortunately, even with the ruling by the EEOC, discrimination continues to occur in workplaces across the country.

In collegiate athletics, the problem is particularly profound. Just last month three former coaches at the University of Minnesota filed lawsuits claiming they were discriminated against based on gender and sexual orientation. According to a ThinkProgress article, Josh Berlow, the UMD athletic director, asked Shannon Miller, “one of the most successful women’s hockey coaches in NCAA history,” to resign. “When she refused, he immediately declined to renew her contract due to “financial reasons.” She was never offered a chance to take to take a pay cut, and male coaches were not cut. At the time of termination, Miller made $93,000 less than the UMD men’s hockey coach, Scott Sandelin.” Allegations from the three coaches claim that they received hate mail, were treated with “explicit hostility and discrimination” and were “undermined and belittled” by colleagues.

And then there are the numerous cases of sexual orientation discrimination backed by religion. In Illinois, a bed and breakfast called Timber Creek recently lost its discrimination case to a same sex couple that it denied service to in 2011. Then there is the bakery in Oregon that refused to bake a cake for a same sex couple’s wedding and was ordered to pay $135,000 in damages. Now they are refusing to pay. Situations like these, where people are discriminated against based on their sexual orientation, are sadly all too common. Yet, the number of complaints that are actually filed likely represent only a fraction of the cases of discrimination actually occurring.

If the progress in the fight for equal rights is to continue, it is imperative that individuals facing discrimination stand up for their rights. If you are facing discrimination in the workplace based on sexual orientation, you need an experienced lawyer who can help you navigate the law and protect your freedom. At Sherman Law we specialize in New Hampshire and Massachusetts employment discrimination and can help you fight back against unjust workplace practices. Contact us today for a free consultation.

John P. Sherman, Esq. opened his own firm in 2005 after rising through the ranks to become a partner at one of New Hampshire’s largest law firms. Today he applies his deep expertise in personal injury, employment law, construction law, and real estate law to provide strategic counsel to both businesses and individuals in New Hampshire and Massachusetts. John holds a J.D. cum laude from American University, Washington College of Law and has a track record of successfully litigating cases in state and federal courts. Learn More »

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