Know Your Rights: The fight goes on,
but some laws already provide protection
Unlike same-gender sexual harassment claims, if an individual is harassed or fired from her private employment on the basis of her sexual orientation or affectional preference, most of the major federal discrimination laws will not protect her. Homosexuality plus certain other factors may support the constitutionality of certain adverse employment actions in varied government positions.
Unfortunately, the recent Employment Non-Discrimination Act, which would have amended Title VII to include discrimination based on sexual orientation, failed in both houses of Congress. While sexual orientation discrimination still exists, the good news is that eight states and the District of Columbia have incorporated full protection for employees against employment discrimination on the basis of orientation into their human rights laws.
Employees in New York have been more successful in creative lawsuits not based on discrimination against gays and lesbians directly, but upon conduct otherwise proscribed by Title VII. For example, in one recent case, the Plaintiff successfully argued that his involvement in a church-related organization that promotes homosexual rights was a religious practice protected by Title VII. The Court found that membership in a group that advocates homosexual rights may be a religious belief within the meaning of Title VII. Additionally, arguments have been successfully made that pervasive harassment against an individual due to his or her sexual orientation is in violation of the Equal Protection and Due Process clauses of the United States Constitution. While much of this information can be somewhat confusing, we can certainly help you make sense of this all. Contact us for more information on sexual orientation and gender identity discrimination.
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