Hostile Work Environment Law & Related Topics

Discrimination In The Workplace: Protection For The Gay Or Lesbian Worker

In May 28, 1998, then US President Clinton signed Executive Order 13087 which further amended Executive Order 11478 (Equal Employment Opportunity), an act that banned discrimination in the workplace based on sexual orientation in the federal civilian workforce.

This EO has very limited scope, confined to the:

  • Federal civilian workforce;
  • District of Columbia government employees; and the
  • US Postal Service

It does not apply to:

  • Uniformed military personnel;
  • Federal Bureau of Investigation personnel; and
  • Other exempted services

It in no way expands the terms of the Civil Rights Act of 1964 which does not specify discrimination based on sexual orientation as a violation. The EO further sparked controversy among conservatives, who demanded its rescission, but it remains in force.

While the new EO banned discrimination against homosexuals, it does not change a thing for two reasons: 1. It does not cover uniformed military person. 2. Complaints for anti-homosexual biases cannot be filed with the EEOC. This is as good as practically having no federal laws to protect homosexuals from anti-gay bias. On the other hand, the growing acceptance of this segment of the population has made many states pass antidiscrimination laws to this effect. As a result many private companies ensure that a related workplace harassment policy is in place that protects gays and all other minorities.

There are seventeen states that have such laws, eighteen with the District of Columbia. Wisconsin was the first to pass the law in 1982. The rest include California, Hawaii, Rhode Island, Vermont, Washington, New Jersey, Massachusetts, Minnesota, Nevada, New Hampshire, Maine, Maryland, New York, Connecticut, New Mexico, and Illinois. States prohibiting sexual orientation discrimination in public workplaces are Michigan, Pennsylvania, Indiana, Montana and Delaware. There are also 180 cities that enforce their own workplace sexual orientation antidiscrimination laws, the first of which were Seattle (1973) and Michigan (1974).

This is indicative of the progress the gay and lesbian rights movement has made in the last two decades in all aspects of society. Human rights activists have worked this acceptance into the labor force by persuading the sector of the benefits of adopting anti-discrimination policies at work for their homosexual workers in terms of the diversity, talent and skill they can bring to a company. According to the HRC, fully 95% of privately owned companies have subscribed to this idea.

Today, a majority of the top companies in the US have discrimination policies in place including sexual orientation, and the largest private employer of them all, Wal-Mart, with over one million employees had formally included sexual orientation as part of its workplace antidiscrimination policy in 2003. This was mostly through the efforts of The Pride Foundation, a gay rights group based in Seattle, who purchased shares in the giant store chain to have a voice in its policies.

Gays and lesbians now have considerably more legal recourse when facing discrimination in the workplace although in states that have no such laws, the cities within that do are hampered in the enforcement of the laws in state courts.

The full recognition of gay rights in the workplace is far from complete, but the outlook is getting better every year. The majority of private employers at least recognize the need to respect the rights of homosexuals and ban discrimination in the workplace to ensure that a hostile work environment is prevented from occurring. This is good news for the average working homosexual.

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