19. What federal protections exist from discrimination based upon sexual orientation or identity?
Sexual orientation or identity discrimination in the employment context means any form of employment discrimination based upon the real or perceived sexual orientation (gay, lesbian, bisexual, or heterosexual) or identity (transgender association) of an employee. There are currently no federal statutes in place specifically affording protections to individuals based upon sexual orientation or identity. There are, however, common law decisions at the US Supreme Court and Federal Circuit Court levels that associate sexual orientation and sexual identity with sex-based discrimination. Further, in a federal administrative court case involving a federal employee in 2015, the EEOC determined that sexual orientation (and possibly identity) discrimination is a form of discrimination based upon predispositions about an individual’s sex. The EEOC’s opinion effectively extended sexual orientation protection to all federal employees (as well as employees of federal contractors). Federal courts have not yet extended this logic to discrimination actions against private employers.
• Note: Numerous states (and the District of Columbia) and a few local governments have laws or ordinances protecting employees against sexual orientation and identity discrimination by public and private employers.
• Discussion: How do you feel about the absence of federal statutory protections against discrimination based upon sexual orientation or identity? Are there any arguments for or against such protections? Do you see a general trend in society toward or against protection?
• Practice Question: Bart is an employee of ABC Corp, a large corporation located in State A. State A does not have any state laws protecting employees from discrimination based upon one’s sexual orientation or identity. Bart was recently let go from his job for no apparent reason. He believes that he was fired when his employer learned that he is homosexual. What legal options exist for Bart to challenge his firing?