DO TITLE VII’S “BECAUSE OF SEX” PROTECTIONS FOR EQUAL OPPORTUNITY IN EMPLOYMENT EXTEND TO SEXUAL ORIENTATION?
QUESTION: I’m a gay man who, until last week, worked for a defense contractor. Because this is a very macho environment, I did not volunteer my sexual orientation, even after my partner and I got married a couple of months ago. Last week I went to Human Resources to add my husband as a dependent on my health insurance. Yesterday, I was told there was not enough work, and I was being let go. I have been extremely busy, and we seem to have a ton of work to do. I believe I’m being discriminated against because of my sexual orientation. Can I sue?
ANSWER: It sounds like you may have been discriminated against; the problem is whether the courts will recognize the validity of your claim. Michigan is one of 29 states minority of states that does not offer any employment protection to workers for discrimination based on sexual orientation or gender identity. The federal law, Title VII, provides protection for discrimination “because of sex.”
Last year, the Equal Employment Opportunities Commission issued guidelines for treating claims under Title VII that included protection for members of the LGBT community, under a theory that LGBT people are discriminated against “because of sex” when they do not follow stereotyped norms of behavior for their biological gender. That is, a man who has intimate relations with another man would not be discriminated against but for his sex; the same behavior, having sex with a man, who not be held against a similarly situated woman.
The EEOC’s guidelines are not binding on the courts. The Sixth Circuit Court of Appeals, of which Michigan is a part, has held that since Title VII does not specifically include sexual orientation/gender identity among the protected classes listed, there is no protection for this class. The Court has upheld appalling treatment of gay people – in one case it found a gay worker had no Title VII claim where he was physically assaulted, routinely called “fag”, his work area was routinely trashed, co-workers turned off the lights whenever he had to use the facilities, and placed obscene materials on his desk.
This said, there may be some hope that employment protection for LGBT people will become part of Title VII law. The Supreme Court decision in Obergefell v Hodges, recognizing the right of same sex couples to marry, has placed a very harsh spotlight on the failure of the law to provide protection from discrimination in the workplace. The Seventh Circuit recently reversed a decision that upheld denying protection to a gay man, and an appeal to the Sixth Circuit has been made in the case of a transgendered woman whose employer fired her after she revealed her intent to come to work as a woman, in female attire.
You may wish to get in touch with an LGBT group in your community to work toward a legislative solution to the lack of protection. Petitions demanding changes in the law are being circulated in several areas.
If you decide to sue, a knowledgeable attorney would be able to help you state a claim that would take advantage of the current uncertainties in the law. The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN TAURIAINEN PLLC. To view previous columns, please visit our website at www.gwinntauriainenlaw.com.
ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
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