Employment & Labor Insider

The Employment Non-Discrimination Act is dead again. Is there any federal law on same-sex harassment or discrimination? If so, what is it? Here are some scenarios that may be helpful in picking through this crazy extremely complex and rapidly transitioning area of the law. (Answers are provided after Scenario 6, below.)

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Scenario 1. Joe has a huge crush on John. Joe makes lewd and unwelcome comments to John, and tries to corner him to make sexual advances to him. John has made it clear to Joe that he is not interested, but Joe doesn't listen.

Under federal law, is there a problem?

A. No - duh - these are two guys!

B. No, because Joe has a right to express himself sexually.

C. Yes, because John may be a happily married family man.

D. Yes, if the employer knows or has reason to know about it. John's being harassed because of his sex.

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Scenario 2. Bill interviews Lester for a job. Lester is huge, hairy, and masculine looking. When Bill offers him a job, Lester says he is thrilled but will have to discuss it that evening with his "better half," Jim. Bill immediately withdraws the offer and hires a less-qualified heterosexual man.

Has Bill violated federal law?

A. No. It's unfair, but it's not a violation of federal law.

B. No, because this is employment at will. Bill can choose whomever he wants.

C. Mercy, yes! This is blatant discrimination!

D. Of course it's illegal!

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Scenario 3. Bill interviews Charlie for a job. Charlie is married (to a woman) and has four kids. However, he's "thin and neat," and he speaks with a sibilant "s." Bill thinks Charlie will catch too much grief from Bill's "rough" work crew, so he hires a less qualified guy who he thinks is more "manly."

Has Bill violated federal law?

A. Of course not. This has nothing to do with sexual orientation.

B. No, because this is for Charlie's own protection.

C. Yes, because it's unfair to deny Charlie a job just because of the way he looks and talks.

D. Yes, this is illegal sex stereotyping. Charlie isn't what Bill thinks a "man" should be.

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Scenario 4. Mary has short hair, doesn't wear makeup or nail polish, and she wears "men's" pants and flat shoes. The women she works with gossip about her behind her back and play mean jokes on her. The female supervisor sees all of this and thinks it's funny and harmless.

Might the company be liable under federal law?

A. No. Women will gossip. There's nothing you can do about it.

B. No, because the supervisor honestly believed it was harmless.

C. Yes, because this is illegal sexual stereotyping, and the supervisor knows about it.

D. Yes, because Mary is probably a lesbian.

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Scenario 5. Anne has long, lustrous, beautiful hair, and is perfectly dressed and made up every day, right down to her shell-pink ruffledy chiffon dress and her seven-inch stiletto heels. One day, Anne tells her boss that she and her partner are planning to adopt a baby. While the boss is ecstatically planning Anne's baby shower, Anne mentions that her partner's name is Marie. The boss starts writing Anne up for performance issues (all bogus), and eventually fires her.

Might the company be liable under federal law?

A. No. Maybe the boss was just jealous of Marie.

B. No, because Anne is being discriminated against only because of her sexual orientation.

C. Yes, because Anne is a lesbian.

D. Yes, because it's illegal to fire someone who's planning to adopt a child.

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Scenario 6. Marsha (formerly Marshall) is a biological male who is going through the gender-reassignment process. Marsha has not had surgery yet, but she's started hormone treatments and, on the advice of her physician, has begun dressing and living as a woman. Marsha's supervisor, Staci, fires Marsha for coming to work five minutes late -- once -- when there was a horrendous accident on the interstate that made everyone else late, too. (No one else is even written up.)

Has Staci put her company in jeopardy under federal law?

A. No. Marsha has no rights until she actually has the surgery.

B. No, as long as the company has a zero-tolerance policy on tardiness.

C. Yes, because this is illegal gender stereotyping.

D. Yes, Marsha had a good excuse for being tardy.

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The answers, with no ENDA, and assuming none of these employers are federal contractors, are 1-D, 2-A, 3-D, 4-C, 5-B, and 6-C.

Huh? Seriously?

Crazy Extremely complex and rapidly transitioning, I know! Title VII prohibits discrimination based on sex but not sexual orientation. However, Title VII does prohibit discrimination based on sex stereotyping. (Why? Because the Supreme Court said so, that's why.) So if the discrimination or harassment has something to do with stereotyping -- in other words, the individual is being picked on because he doesn't fit the picture of what a "man" should be, or she doesn't fit the picture of what a "woman" should be, the individual could have a valid federal claim. As in this case.) On the other hand, if the individual is picked on "only" because he or she is perceived as being gay, then there is no valid federal claim.

Of course, many states and local governments have their own laws prohibiting discrimination and harassment based on sexual orientation. In addition, in any state, a person who is harassed because of sexual orientation may (depending on the circumstances) have common-law tort claims for intentional or negligent infliction of emotional distress, assault and battery, or false imprisonment, and one who is fired or "forced" to quit could have a claim for wrongful discharge.  So employers should not think that the lack of a federal law means they can act with impunity.