In New York City, an employer who discriminates on the basis of sexual orientation violates the New York City Human Rights Law and is liable for damages. Whether workers in other parts of the country enjoy this same protection is an issue that has divided the federal courts, and the question may be headed to the Supreme Court in the next year or two.
In the Second Circuit, which comprises the federal courts in New York, Connecticut, and Vermont, claims for sexual orientation discrimination are often brought under the guise of “gender stereotyping” discrimination – that is, discrimination for not acting stereotypically male or female. So, a gay man who is harassed for allegedly acting like “a submissive sissy” has a claim. Unfortunately, this is often fitting a square peg in a round hole. Discrimination claims that have nothing to do with stereotypical behavior, such as an employer asking a prospective employee about their sexual orientation, and refusing to hire on that basis, are not covered under the “gender stereotyping” dodge.
This week, the Seventh Circuit, based in Chicago, took the bold step of holding flat-out that Federal law in fact forbids sexual orientation discrimination. Earlier this year, the Eleventh Circuit, based in Atlanta, held the opposite. For its part, the Second Circuit this week suggested, without actually ruling, that it was time to recognize sexual orientation claims under the federal civil rights laws. This issue is at a boil, and given the split in the circuit courts appears headed to the Supreme Court soon.