Sexual orientation discrimination in the work place is not recognized on the Federal level, which is both shocking and disappointing. Although, sexual orientation discrimination is recognized in Illinois, there are situations where a claimant faced with sexual orientation discrimination has little to no recourse in state court. Those individuals are state employees. According to the ACLU, state employees are not entitled to damages for sexual orientation claims in state court. As we all know, in the legal profession the only true way to right a wrong is through money damages. Although, an injunction is possible, in many cases forcing an employer to re-hire an employee is not preferred as it leads to further conflict. As such, the state employee who has suffered sexual orientation discrimination must find a way to plead his/her case in federal court, where sexual orientation is not recognized on its face. What a conundrum.
However, Federal courts do recognize sex discrimination, where an employer is prohibited from making employment decisions based on an employees gender. In this regard, our Claimant may allege that he was discriminated for failure to conform to sex stereotypes and/or that sex discrimination is a form of cognizable sex discrimination. To plead sex stereotyping, the Claimant must state that his employer discriminated against him because he did not conform to stereotypes assigned to males. However, to plead sexual orientation discrimination as sex discrimination requires more finesse. The EEOC in Baldwin v. Foxx, stated the argument best:
“Under Title VII, allegations that an employer is discriminating against an employee based on the employee’s non-conformity with sex stereotypes are sufficient to establish a viable sex discrimination claim. see Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989)(“we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”). Here, Plaintiff as alleged that he is a ‘a homosexual male whose sexual orientation is not consistent with the Defendant’s perception of acceptable gender roles,’ that his ‘status as a homosexual male did not conform to the Defendant’s gender stereotypes associated with men under [his supervisor’s] supervision or at the LOC,’ and that ‘his orientation as homosexual had removed him from [his supervisor’s] preconceived definition of male’. As Plaintiff has alleged that Defendant denied him promotions and created a hostile work environment because of Plaintiff’s nonconformity with male sex stereotypes, Plaintiff has met his burden of setting forth ‘a short and plain statement of the claim showing that the Pleader is entitled to relief.'” http://www.eeoc.gov/decisions/0120133080.pdf
It appears that a Claimant who must or wishes to plead his case for sexual orientation discrimination in Federal court, must do so indirectly, which seems absurd given recent gains in gay marriage. Studies have found that a job is not just about money, but that it defines and validates our existence and self worth. In this regard, civil liberties should be protected in the work place just as much as it is protected in the home.
Our firm is at the helm of this issue in a recent case filing. Please see the following article for more information: