Harassment on the basis of sexual orientation has been largely ignored in the workplace but this is changing.
Gays, lesbians and transgender workers are not mentioned as a “protected class” under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion and national origin. And no federal anti-bullying or anti-harassment laws or regulations protect workers who are not members of a protected class. So workers who were targeted for harassment because they were perceived to be gay, lesbian or transgender historically had little recourse against cruel and harmful harassment.
But the U.S. Equal Employment Opportunity Commission (EEOC) last year held that Title VII’s “broad prohibition of discrimination” on the basis of sex “will offer coverage to lesbian, gay and bisexual individuals in certain circumstances.”
The EEOC ruling was made in a case filed by Leon Brooker, a clerk at a U.S. Postal Service distribution service in Atlanta, GA, who has been forced to wage a lonely but important legal battle to be free from sexual orientation harassment.
In 2011, Brooker filed an EEOC complaint alleging that coworkers and customers made allegations on Nov.24, 2010 regarding his sexual preference, including that he is gay and frequents gay clubs and bars.
An Administrative Law Judge (ALJ) summarily dismissed Brooker’s complaint after ruling the incident was not sufficiently severe or pervasive to state a viable claim of harassment. The EEOC initially affirmed the ALJ ruling on appeal but later overturned it after Brooker sought reconsideration. Brooker presented evidence that he had been harassed on a daily basis for 11 years. Brooker said he consulted with an equal employment opportunity officer in 2005 about sexual orientation harassment. The EEOC concluded in 2013 that the court record showed the harassment suffered by Brooker was not a “one day” occurrence, that Brooker was the victim of a hostile workplace environment based on sex, and the EEOC ordered the postal service to halt the harassment.
But the harassment of Brooker continued.
Brooker filed another EEOC complaint in 2012, this time alleging that he was repeatedly called “fag” and “faggot” by co-workers. He said his supervisor not only did nothing to stop the harassment but, referring to the clerk, said during a staff meeting that some “folks” should not watch other “folks get undressed.”
The co-workers and the supervisor denied making derogatory comments about Brooker’s sexual orientation of the clerk and an ALJ summarily dismissed Brooker’s complaint on the grounds that Brooker failed to establish that he was subjected to a hostile work environment. The ALJ said Brooker “did not show that any of the comments were directed toward his status as a male” and that the comments “appeared to be directed toward his sexual orientation.” The ALJ held that harassment on the basis of sexual orientation was not covered by EEOC regulations.
Title VII ‘s prohibition against sex discrimination covers harassment of lesbian, gay and bisexual workers – EEOC
The EEOC overturned the ALJ ruling on November 18, 2014, holding that Title VII’s “broad prohibition” against sex discrimination “will offer coverage to lesbian, gay and bisexual individuals in certain circumstances … we find that Complainant’s claim of harassment based on his ‘perceived sexual orientation’ is a claim of discrimination based on the perception that he does not conform to gender stereotypes of masculinity, and therefore states a viable claim under Title VII’s sex discrimination prohibition.” The ruling effectively brings sexual orientation harassment within the ambit of Title VII’s prohibition against sex discrimination.
Earlier this year, Carol R. Miaskoff, acting associate legal counsel for the AARP, cited the Brooker case, among others, to establish the proposition that intentional discrimination, including harassment based on an individual’s sexual orientation, can be proved to be grounded in sex-based norms, preferences, expectations, or stereotypes and thus violates Title VII’s prohibition on discrimination because of sex. This comment would seem embrace all forms of discrimination in the workplace directed against gay, lesbian and transgender workers.
The EEOC also discussed the significance of homophobic comments in the workplace in its 2014 ruling.
Courts have selectively recognized that some ethnic, sexist and racial slurs contribute a hostile workplace environment but they have been slow to extend this reasoning to ageist and homophobic comments.
The EEOC held that “[T]he words “fag” and “faggot” have been historically used in the United States as a highly offensive, insulting, and degrading sex-based epithet against gay men. Additionally, the words “fag” and “faggot” are offensive, insulting, and degrading sex-based epithets historically used when a person is displaying their belief that a male is not as masculine or as manly as they are.”
Hopefully, Brooker will not have to file a third EEOC complaint.