What is Sexual Orientation Discrimination?

Sexual orientation or identity discrimination in the employment context means any form of employment discrimination based upon the real or perceived sexual orientation (gay, lesbian, bisexual, or heterosexual) or identity (transgender association) of an employee.

What are the federal sexual orientation protections?

On June 15, 2020, the US Supreme Court issued an opinion in Bostock v. Clayton County. In this case, the court held that discrimination against an employee based upon their sexual orientation is a form of discrimination based upon sex.

Prior to the Bostock decision, there were very few federal protections for discrimination based upon sexual orientation.

There are other common law decisions at the US Supreme Court and Federal Circuit Court levels that associate sexual orientation and sexual identity with sex-based discrimination.

Further, in a federal administrative court case involving a federal employee in 2015, the EEOC determined that sexual orientation (and possibly identity) discrimination is a form of discrimination based upon predispositions about an individual’s sex.

The EEOC’s opinion effectively extended sexual orientation protection to all federal employees (as well as employees of federal contractors). Federal courts have not yet extended this logic to discrimination actions against private employers.

Note: Numerous states (and the District of Columbia) and a few local governments have laws or ordinances protecting employees against sexual orientation and identity discrimination by public and private employers. Discussion: How do you feel about the absence of federal statutory protections against discrimination based upon sexual orientation or identity? Are there any arguments for or against such protections? Do you see a general trend in society toward or against protection?