Sexual orientation discrimination can be described as being treated differently or harassed because of a person’s actual or perceived sexual orientation, which includes gay, lesbian, bisexual, or heterosexual orientation.
Unlike federal laws that protect people from workplace discrimination on the basis of race, national origin, religion, sex, age, and disability, there is no federal law that specifically prohibits workplace discrimination on the basis of sexual orientation.
Instead, in 1998, the United States Supreme Court confirmed that the main federal anti-discrimination law (Title VII, 42 U.S.C. § 2000e et seq.) that prohibits sex discrimination also extended to same-sex harassment. Prior to this ruling federal courts were sharply divided on this issue and under what circumstances, sexual harassment of an employee by a supervisor or colleague of the same sex as the employee was actionable under the Title VII. But even with this extension, discrimination based on one’s sexual orientation is not prohibited – only discrimination based on sex.
Examples of situations that can establish a hostile-work-environment claim based on same gender harassment include where the harasser making the sexual advances is acting out of sexual desire, where the harasser is motivated by a general hostility to the presence of men or women in the workplace, or where there is comparative evidence regarding how the harasser treated members of both sexes in a mixed-sex workplace. Each of these examples is a mechanism for ascertaining an intent to discriminate based upon sex.
If same-sex harassment “because of sex” sounds confusing, you’re not alone. Court’s continue to struggle to apply the current law to same-sex harassment claims. A prime example of this struggle is the recent en banc decision of the Fifth Circuit Court of Appeals in EEOC v. Boh Brothers.
Ten of the sixteen judges on the panel ultimately reversed a prior ruling that had found no liability against the employer under Title VII where a supervisor found a subordinate insufficiently manly resulting in a daily routine of name calling (e.g., f*ggot, queer, princess, p*ssy, etc.) simulating sex acts whenever the employee bent over, and exposing himself on multiple occasions.
The remainder of the judges offered their own views in multiple dissenting opinions. Of particular note was the dissent by Judge Jerry E. Smith and joined by Judge Harold R. DeMoss, Jr. These judges expressed their concern that finding the employer liabile would result in the
… American workplace [becoming] more like a prison than a place for personal achievement, individual initiative, and positive human interaction; one’s speech is chilled as a condition of keeping one’s job … [and] ‘portends a government-compelled workplace speech code’ — ‘a code of civility’ [imposed] on the American workplace.’ The hypersensitivity that is blessed unintentionally by the majority nudges the law in a direction that hastens cultural decay and undermines — if even just a little bit — an important part of what is good about private employment in the United States.
The dissenting judges did not specify if they believed the routine use of homosexual epithets against an employee, the punctuated simulated homosexual acts in the workplace, the occasional exposure of the supervisor’s genitals, or something else were examples of what they believe made private employment so “good”, but their perspective that banning such conduct would “hasten” the cultural decay of the U.S. workforce is an interesting one; To each their own.
In contrast to federal law, state law prohibiting discrimination based on sexual orientation is a dynamic patchwork with 21 states and the District of Columbia prohibiting sexual orientation discrimination. Michigan is not one of these states.
Michigan Courts, however, have followed federal law and concluded that the Michigan Civil Rights Act (the Elliott-Larsen Civil Rights Act) also extended to same-gender harassment claims. Thus, a plaintiff may bring a hostile-work environment claim even though the harasser may be the same gender. But again, sexual orientation discrimination is not prohibited under Michigan law.
The Dismal Economics of Sexual Orientation Discrimination
The Detroit Free Press recently ran an editorial; The High cost Michigan Pays for Excluding Gay People, advocating to repeal the “mean-spirited” ban adopted in 2004 by Michigan against gay marriage. The editorial notes:
In sanctioning discrimination on account of sexual orientation, Michigan sends a noxious message, not just to gay citizens, but also to a new generation of college-educated heterosexuals that finds exclusionary policies regressive and morally repugnant … there is a strong case to be made that perpetuating the hostility codified in Michigan’s 9-year-old ban could slow or even derail the economic recovery that GOP legislators insist is their highest priority.
The same reasons and rationale offered in the editorial by the Detroit Free Press for repealing Michigan’s ban on gay marriage certainly apply to Michigan workplaces and public accommodations or services.
In this regard and as noted above, while the Michigan Civil Rights Act (ELCRA) prohibits employment, public accommodations, public services, education, and housing discrimination based on race, religion, color, national origin, sex, age, marital status, height, weight, and arrest record, it does not currently prohibit discrimination based on sexual orientation or gender identity/expression. This means that employers can fire or refuse to hire people, landlords can deny housing, and business owners can refuse restaurant service based on an individual’s actual or perceived sexual orientation or gender identity/expression and those individuals would have no means of legal redress.
A 2013 study by the Michigan Department of Civil Rights found that there were numerous ways that the lack of nondiscrimination protections for sexual orientation and gender identity/expression impact Michigan’s economy and Michigan business’ profits. For example, the report noted:
- Employee productivity is particularly hard hit when an employer openly discriminates. Discriminatory environments for LG BT employees have also been shown to negatively impact the performance of heterosexual employees.
- Businesses that support and promote inclusive business policies reported a high level of employee satisfaction, lower turnover rates, and increased consumer confidence.
- Leaving Michigan was perhaps the most substantial effect of Michigan’s lack of LGBT inclusive policies. Approximately 1/5 of the testimony the department heard referenced people leaving Michigan for reasons related to discrimination: “Professionals and college students, including students who identified as heterosexual, said that they plan to lead the state because they did not feel that Michigan values all of its citizens … and stated that they would not stay unless the state became a “community for all people.”
Certainly opinions and moral judgments about sexual orientation and its role in society have long dominated political and legal culture. But if you want to avoid passing judgment on judging the morals and opinions involved in judging sexual orientation, there are enough economical and pro-business reasons to provide compelling reasons for why Michigan’s economy would likely benefit from restricting discrimination based on sexual orientation.
And such a restriction would certainly be consistent with Michigan’s long-standing tradition of taking the lead in protecting individuals’ civil rights. In fact, going back to 1955 – almost a decade before the federal government passed the federal civil rights act – the Michigan legislature passed the Fair Employment Practices Act, which guaranteed the opportunity of Michiganders to gain employment regardless of race, color, religion, or national origin. Also, as early as 1983 the Michigan Department Rights Commission issued a statement that the state’s Civil Rights Act should be amended to prohibit discrimination based on sexual orientation.
I’m not one to normally advocate for more regulations when it comes to employers; My experience is that most companies want to do right by their employees and customers while making a profit. However, Michigan and its companies, like many states, are battling to attract and retain talented individuals. While it has lost the chance to be a leader in attracting such talent – at least in comparison to the 21 states that have already prohibited sexual orientation discrimination – it doesn’t have to be weighed down by a policy that is detrimental to economic growth or that has no future under the current legal trends surrounding sexual orientation.