HR Mavericks

Eddy’s HR Mavericks Encyclopedia

Sexual Orientation Discrimination
Is sexual orientation discrimination happening in your workplace? If so, how do you stop it?

What Is Sexual Orientation Discrimination?

Sexual orientation discrimination is treating people differently based on their sexual orientation.

Sexual Orientation Discrimination vs Gender Identity Discrimination

As defined by the US Department of Labor (DOL), “‘Sexual orientation’ refers to an individual’s physical, romantic, and/or emotional attraction to people of the same and/or opposite gender. Examples of sexual orientations include straight (or heterosexual), lesbian, gay, and bisexual.” Please note that defining the term in the context of “the same or opposite” gender implies that there are only two genders, excluding people who identify as non-binary or another gender. The DOL goes on, The term gender identity refers to one’s internal sense of one’s own gender. It may or may not correspond to the sex assigned to a person at birth, and may or may not be made visible to others.” An oversimplified shortcut to remember the difference here is that sexual orientation is how we see others while gender identity is how we see ourselves.

Discrimination vs Harassment

These two terms are often used interchangeably, but they mean distinctly different things, and it’s important to understand how they’re different and how they interact.
  • Discrimination is an adverse action taken due to conscious or unconscious bias against someone because of their protected-class status. (“Protected class” refers to a category of identity, such as race or gender, that has been named under federal or state employment protections.) For example, not hiring someone because they disclose during interviews that they are queer, or passing over a lesbian woman for a promotion and awarding it to a heterosexual colleague instead, is discriminatory.
  • Harassment is unwelcome conduct toward someone else because of an aspect of their identity, and can be perpetrated by anyone. For example, making sexually explicit jokes about gay men or calling queer colleagues homophobic slurs is harassment.
Harassment is a type of discrimination.

Important Laws Regarding Sexual Orientation Discrimination in the Workplace

Let's look at some federal and state laws regulating sexual orientation discrimination.
  • Title VII of the Civil Rights Act of 1964. Title VII originally preserved the rights of and prohibited discrimination based on the protected classes of race, color, religion, sex or national origin. This has been amended several times over the years to increase those protections. Sex was amended to include pregnancy, sexual orientation, and gender identity or expression. Also added was age, disability, genetic information (medical conditions), marital status, and military or veteran status.
  • Executive Order 13672. President Obama signed this order in 2014, which added gender identity to the categories protected by Title VII. The U.S. Equal Employment Opportunity Commission (EEOC) extended that right to sexual orientations in 2015. This is enforced by the DOL.
  • 42 U.S.C. § 2000e-2 (Section 703). This law was from the 2020 Supreme Court verdict in Bostock V. Clayton County, Georgia. Justice Neil Gorsuch argued that if you discriminate against a person based on their sexual orientation or for being transgender, this discrimination is based on sex. This is enforced by the EEOC and prohibits discrimination based on sexual orientation or transgender status.
  • Equality Act. The Equality Act was a topic that President Biden added into his first State of the Union address. This Act would officially amend the Civil Rights Act of 1964 to prohibit discrimination based on sex, sexual orientation, and gender identity in employment, housing, public accommodations, education, federally funded programs, credit and jury service. As of this writing in 2023, the Act has been passed by the House and is awaiting a decision from the Senate.
  • Applicable state laws. As of 2023, 22 states plus Washington D.C. have laws that prohibit discrimination based on sexual orientation and gender identity. For more information, contact your local EEOC field office here. However, also as of this writing, there are a number of states passing legislation to reduce or limit the rights of LGBTQIA+ individuals, most notably Florida. You can learn more about these types of state legislation here.

Consequences of Sexual Orientation Discrimination

Employers found guilty of engaging in sexual orientation discrimination or harassment, or of failing to take appropriate, timely action to correct it, are subject to various types of fines—compensatory damages, punitive fines, and/or liquidated damages—that can prove quite costly. Additionally, legal fees are expensive. These are just the direct financial costs; employers also face loss of revenue because of customer boycotts, turnover costs from employees leaving the organization, reputational risk and brand damage from public opinion, and more.

Examples of Sexual Orientation Discrimination In the Workplace

Discrimination and harassment can be very obvious at times and not so obvious at others. Employers should focus less on the intent of the discrimination and more on the impact. Many court cases of discrimination are not examples of overt or intentional discrimination, but rather a pattern of behaviors and their impact. One incident could be egregious enough to be considered discriminatory, but often there are underlying patterns that add up over time. Workplace harassment and discrimination can also occur after hours and/or away from the job site. Any work-sponsored function, from volunteering in the community to an informal happy hour gathering, can result in a discrimination claim. Harassment can come from coworkers or from customers, donors/funders, board members, volunteers, and others. In any case, it is the employer’s duty to protect its employees from any kind of harassment from any source. The remedy for harassment is to stop the behavior as soon as possible, so employers need to intervene as soon as they learn harassment or discrimination is occurring. Here are some types of harassment and discrimination to watch out for.

Verbal Harassment

Verbal harassment and discrimination can come in the form of inappropriate jokes, slurs, sexual comments, gossip, threats, bullying, and more. Verbal harassment can be overt (calling someone a slur), but it can also be more subtle (repeatedly misgendering a colleague).

Non-Verbal Harassment

Non-verbal harassment includes things like explicit pictures, cartoons or comics, hand or body gestures, or jokes about sexual orientation. It can also involve things like vandalization of someone’s workspace, turning out the lights on someone using the restroom or blocking someone from using a restroom, or other acts that may not appear to be related to sexual orientation but are perpetrated against someone because of their orientation.

Discriminatory Employment Practices

Employers should strive to make all work-related decisions on the basis of equity, fairness, and merit. Using someone’s sexual orientation as a deciding factor in any decision at your organization (hiring, firing, wages, promotions or demotions, evaluation rankings, access to training, assigning tasks or duties, etc.), is discriminatory and illegal.

How to Eliminate Sexual Orientation Discrimination in the Workplace

Every person has the right to work in an environment free from harassment and discrimination, and ideally where they can be their authentic self. Let's consider the steps below to prevent and stop sexual orientation harassment and discrimination in the workplace.

Step 1: Policy and Procedure for an Inclusive Workplace

As a foundation in preventing harassment and discrimination, develop strong diversity, equity, and inclusion practices that explicitly include sexual orientation protection. Make sure you have a process to follow in case someone experiences harassment or discrimination, which should include clear channels for reporting, investigatory steps, a remedy or solution, and a strong anti-retaliation policy.
  • Reporting. All workplaces need to have a process for employees to report complaints of harassment or discrimination. The reporting process should be simple, clear, and explicitly communicated to all staff (with periodic reminders). A common practice is to have complaints reported directly to HR. However, employees often feel more comfortable reporting a complaint to their supervisor. Train supervisors in what to do if a member of their team makes such a complaint (in simplest terms, train supervisors to call HR immediately).
  • Remedies. The longer harassment or discrimination is allowed to continue without intervention, the more legal risk for the employer. A remedy is some action the company takes to stop the behavior. This might be as simple as a verbal warning, or it might be something more extreme, such as termination of the person doing the harassment/discrimination. The remedy depends on the specific situation, and often an investigation is required to determine the appropriate action.
  • Anti-retaliation policy. An employee who complains about harassment or discrimination is protected from negative actions being taken against them because of their complaint. The same protection extends to witnesses who participate in investigations and to anyone who has a complaint made against them.

Step 2: Training and Awareness

The next step to your prevention plan is training. You should train every employee, beginning with leaders and supervisors, on how to recognize harassment and discrimination. Make sure they know your company’s policies and what steps to take if they witness or are informed of harassment or discrimination. Refresh the training often so it stays top of mind. Some states (and/or cities) dictate how often supervisors must be trained in anti-harassment and anti-discrimination; in CA, for example, all employees must receive one hour of sexual harassment training every two years, and supervisors must receive two hours of training every two years. Check with your state Department of Labor to learn more about requirements where you work.

Step 3: Take Immediate Action

When any kind of potential harassment or discrimination is reported, take immediate action. Remove the person potentially causing harm (depending on the scenario, it can be a good idea to put that person on paid administrative leave while an investigation is conducted). Open an investigation, interview the complainant and the person the complaint is made against, as well as relevant witnesses, to assess if the complaint has merit. If the investigation finds that the concerns have merit and harassment/discrimination has taken place, take immediate action to remedy the situation.
Tammi Burnett

Tammi Burnett

Tammi has 8+ years of progressive HR experience in a variety of industries and settings, including nonprofit and higher education. She believes that doing HR well means being a true partner and collaborator with every part of an organization, and by saying "yes" to creative problem solving wherever and whenever possible (and legal). Her favorite work includes diversity, equity, inclusion, and belonging (DEIB); the how and why of hiring and retaining great people; helping to sustain an organizational culture of trust, empathy, and candor; and anything else that prompts employees to say they love where they work. In her free time, you can find her wandering outdoors, studying clinical herbalism, tinkering in the kitchen, dismantling the patriarchy and white supremacy, and hanging out with her cat, Emily Dickinson.
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Heather Anderson

Heather Anderson

Heather is an experienced HR and Employee Relations professional with a strong background in compliance. Heather is an advocate for learning and enjoys mentoring others to help them grow and learn. As a Society for Human Resources Certified Professional (SHRM-CP), she earned her bachelor's degree in Human Resource Management from Western Governors University and is currently obtaining her Juris Master in Employment Law and HR Risk Management from Florida State University. Heather currently serves on the Board of Directors for Utah State SHRM and has spoken at several conferences helping the new HR professionals with tips for success. She also is a mentor with LevelNext helping to educate others in HR as well as assisting with resume writing and social media optimization. When Heather is not spending time on her education or sharing her passion for the HR world, she can be found spending time with her family, playing pool, or helping create monsters for Fear Factory Haunted House here in Salt Lake as a part of the makeup team.
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