| Historically, employers, both public and private, were free to discriminate against employees or applicants because of their sexual orientation, which includes homosexuality, heterosexuality, and bisexuality. It was not illegal to fire, refuse to hire, or to demote someone because he or she was a homosexual. Today, while sexual orientation does not have the same broad protection from discrimination as race, religion, or gender, its protection from discrimination has been steadily increasing at the federal, state, and local levels.
Federal Laws
The main federal law prohibiting discrimination in the workplace, Title VII of the Civil Rights Act of 1964, does not provide protection to employees or applicants from sexual orientation discrimination. Courts have clearly ruled that Title VII's prohibition against discrimination on the basis of sex does not cover sexual orientation. Thus, sexual orientation discrimination by private employers is not prohibited by federal law.
Employees of the federal government, however, have greater protections. The Civil Service Reform Act of 1978 prohibits employees having employment decision authority from discriminating against an applicant or employee on the basis of conduct that does not adversely affect the performance of the applicant or employee. The Office of Personnel Management has interpreted this provision to forbid discrimination on the basis of sexual orientation. Federal employees who are discriminated against on the basis of sexual orientation may file a complaint with the Office of Special Counsel (OSC), which has jurisdiction to investigate and prosecute alleged violations of the Civil Service Reform Act of 1978. If it determines that there has been a violation, the OSC may file a remedial action before the Merit Systems Protection Board (MSPB). The MSPB has the authority to order corrective action, such as reinstatement.
Furthermore, in 1998, President Clinton signed an Executive Order providing that it was the policy of the United States government to prohibit discrimination on the basis of sexual orientation. Although the Executive Order does not provide actual "rights" to federal employees, it has paved the way for new policies within various federal agencies.
State and Local Laws
Within the last decade, a number of states have passed laws forbidding employment discrimination on the basis of sexual orientation. As of 2004, nearly one-third of all states have statutes prohibiting sexual orientation discrimination in the private or public sectors. Nearly half of all states have at least executive orders setting forth a policy prohibiting sexual orientation discrimination in public employment.
The District of Columbia has barred sexual orientation discrimination in both public and private sector employment since 1977. A number of ordinances in cities throughout the nation also prohibit sexual orientation discrimination in both private and public employment. Copyright 2010 LexisNexis, a division of Reed Elsevier Inc. |