EEOC: Federal law already prohibits sexual orientation discrimination

Given the recent US Supreme Court's decision recognizing the constitutionally protected right for same-sex couples to marry, you may be surprised to the learn that federal employment discrimination law still does not list "sexual orientation" as a protected class. For instance, federal law expressly protects employees from discrimination based on race, religion, national origin, age, disability and sex - but not sexual orientation.

However, that may not matter going forward since the Equal Employment Opportunity Commission (EEOC) determined last month that existing provisions of federal law can already be used to protect employees from discrimination based on sexual orientation - namely, Title VII's current prohibition on sex discrimination.

Essentially, the EEOC determined that it does not matter that "sexual orientation" is not specifically listed under Title VII since "sexual orientation is inseparable from and inescapably linked to sex and, therefore, that allegations of sexual orientation discrimination involve sex-based considerations." Put simply, sexual orientation discrimination is sex discrimination because it involves an employee being treated negatively because of his or her sex.

It its opinion, the EEOC posited several potential examples of sexual orientation discrimination, including:

  • Making derogatory comments about a person's perceived sexual orientation
  • Suspending an employee for displaying a photo of his or her same-sex spouse on his or her desk, but not suspending a heterosexual employee from displaying a photo of his or her spouse
  • Extending health benefits to spouses of heterosexual employees but not to same-sex spouses

Does this decision impact California workers?

Despite this recent decision, it is quite likely that this area of federal law will remain in flux for some time. Fortunately, however, California workers do not have to worry about this since state law already protects them from discrimination based on sexual orientation.

In fact, with some of the strongest employee protections in the country, California employees can seek various damages following sexual orientation discrimination, such as:

  • Wages, including back pay and front pay
  • Compensation for emotional distress
  • Punitive damages, although these are only available in certain circumstances

If you believe you are the victim of sexual orientation discrimination - or any other form of employment discrimination - you need an experienced and skilled attorney in your corner defending your rights. Contact the San Francisco-based law firm of Lawless & Lawless today to learn what your legal options may be. We are dedicated to fighting harassment and discrimination in the workplace.