Chapter 10

Sexual Orientation and Gender Identity Discrimination

Statutory Basis

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex. [Title VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. § 2000e-2(a).]

[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Amendment XIV of the U.S. Constitution.]

The EEOC, which is statutorily responsible for interpreting and enforcing Title VII, has determined that although Title VII does not explicitly include sexual orientation and gender identity , based on Supreme Court and other case law holding that employment actions motivated by gender stereotyping are unlawful sex discrimination and other court decisions, the law’s prohibition against gender discrimination does. If you have been paying attention to the opening Statutory Basis section for all the other chapters, you realize that this one is quite different. Over the past several years the EEOC has set forth its position in several published decisions that explain the legal basis for this determination and give examples of what would be considered unlawful. In reaching this conclusion, according to the EEOC, it has not recognized any new protected characteristics under Title VII. Rather, it has applied existing Title VII precedents to gender discrimination claims raised by LGBT individuals. “What You Should Know About EEOC and the Enforcement Protections for LGBT Workers.” https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm

sexual orientation

Whom one is attracted to for personal and intimate relationships.

gender identity

How one identifies for male/female purposes, based on a combination of genetics and environment, including, among other things, transgender.

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Out of the Closet

See Exhibit 10.1, “Terms to Know.”

“Look!” the angry gentleman in the audience said gruffly as the diversity consultant walked into the room and up to the stage in preparation for conducting a training session. “Does this diversity training mean that I have to deal with homosexuals? Because if it does, I’m not doing it! Homosexuality is against my religion and I just don’t think it’s right!”

Exhibit 10.1 Terms to Know

Terms may evolve over time to reflect changes in thinking and/or preferences within the LGBT community.

Catalyst offers these definitions but encourages readers to recognize that different language may be used by different people, companies, and countries. Also, it is important to respect the language individuals use to identify themselves, regardless of how they are labeled by others.

Bisexual: A person whose emotional, sexual, or romantic attractions are to both women and men. Bisexuals need not be “equally” attracted to, or have had equal sexual experience with, both sexes. Nor do they need to have attractions toward both sexes at the same time.

Closeted/In the closet: LGBT individuals who do not openly disclose their sexual orientation to others.

Coming out of the closet: The process of self-acceptance and/or disclosure of LGBT identity to others. People can disclose to none, some, or all of the people they know.

Gay/Homosexual: A woman or a man whose emotional, sexual, or romantic attractions are primarily to members of the same gender.

Gender express