Can a private employer lawfully discriminate against an employee on account of his or her sexual orientation?

Unless forbidden by a state or local law, in most situations it may. There is no federal law that prevents a private employerlarge or small, incorporated or unincorporatedfrom refusing to hire, firing, undercompensating, or otherwise treating differently any lesbian or gay employee solely because of that person's sexual orientation and regardless of aptitude or work record. Although Congress has outlawed discrimination on thebasis of "race, color, religion, sex, or national origin" and, more recently, "disability," 2 it has not yet seen fit to include sexual orientation within the reach of federal law.

Some other legislative bodies have done so. Five statesConnecticut, Hawaii, Massachusetts, New Jersey, and Wisconsinnow forbid discrimination based on sexual orientation. ("Sexual orientation" is the term most commonly used in legislation of this kind and the expression preferred by activists. The phrase "affectional or sexual preference" appears in some older laws.) And most large cities ban such discrimination, including New York, Los Angeles, Chicago, Philadelphia, Detroit, Atlanta, Boston, San Diego, San Francisco, Seattle, Minneapolis, St. Paul, Baltimore, Pittsburgh, and Washington, D.C. A large number of smaller cities, and some counties, have also acted to protect lesbians and gay men in the workplace. (For a full listing of these laws, see Appendix C.)

All in all, these statutes and ordinances cover more than one-eighth of the entire population of the United States, a remarkable accomplishment in light of the fact that before 1971 no law of this sort existed anywhere.

Are persons living in a place without such a law totally without recourse?

Not necessarily. If there is a written contract with the employer, and that contract limits the circumstances of the employee's discharge, the employee may be able to sue the employee for breach of contract. If, in a union shop, the agreement between the union and the employer requires "just cause" for termination or sets forth certain procedural guarantees that were disregarded by the employer, there may also be a claim.

There may be other arguments as well, depending on the state and whether the courts there have been sympathetic to challenges to the employment at will doctrine. Some state courts have invalidated dismissals that, in their eyes, violate "public policy."3 Others have read into each employment relationship an "implied covenant of good faith and fair dealing."4 Still others have inferred from the particular circumstances of employment a promise that the employee would not be fired arbitrarily.5 Very few lesbian or gay plaintiffs have ever succeeded on claims of this sort, but state courts seem increasingly open to such assertions.Inventive lawyers and tenacious plaintiffs can make startling changes in the law. In 1979 the California Supreme Court rendered a remarkable opinion striking down the discriminatory employment practices of Pacific Telephone and Telegraph Company, the local subsidiary at that time of AT&T. Pacific Telephone was a private company, and California had no statute barring discrimination on account of sexual orientation, but the court accepted an ingenious theory offered by the plaintiffs' lawyers that arose from the special nature of the company's business. Pacific Telephone, while private, was, according to the court, a "state-protected monopoly or quasi-monopoly" and was therefore obligated under the state constitution, as well as various state statutes, to "avoid arbitrary employment discrimination." 7

In some circumstances, discrimination related to a worker's sexual orientation may also constitute discrimination of another kind. The dismissal of a lesbian who is divorced and, in addition, HIV-positive could lead to claims of sex discrimination, marital-status discrimination, and disability discrimination, depending on the facts surrounding the dismissal. (See chapter 8, "The Rights of People with HIV Disease," for a more thorough discussion of how disability and handicap discrimination laws protect people with AIDS and HIV.) In California firing someone because he or she came out to an employer or worked for the passage of gay-rights legislation, among other things, would probably violate the state's labor code, which prohibits employers from interfering with their employee's political activities.8

It is best, in any event, to consult with a lawyer who specializes in employment discrimination whenever such discrimination arises or is anticipated.

What action can be taken if a person suffers discrimination and lives in a place that outlaws sexual-orientation discrimination?

Again, a lawyer should be sought, if possible. All records that relate to the employment and dismissal, including any performance appraisals and any general personnel documents, such as a handbook, should be provided to the lawyer. The greatest barrier to success in most employment discrimination cases is the lack of sufficient proof. Generally, the burden is on the worker to prove that the discriminatory act resulted froma forbidden motive, not on the employer to show that it arose from another, permissible cause.

In some jurisdictions, a lawyer is not necessary to formally challenge discrimination. A form can be filed at a human rights commission or similar agency; there may be a small fee. The worker then waits for a response from the employer, who is notified of the allegations by the agency. Even under these circumstances, it is best to speak first with a lawyer who is able to explain all the available options.

Is it discrimination if a person is fired for talking about being gay, for wearing a button, or for holding his or her lover's hand in public?

Gay people are entitled to to be treated in the same way, and judged according to the same standards, as their heterosexual colleagues. The rules that govern the workplace must be applied in an evenhanded way. What is permissible, and what is not, depends largely on the context. Lesbian and gay employees should be able, for example, to have pictures of their lovers on their desks if heterosexual employees are permitted similar pictures of their spouses and families. If, however, the company prohibits personal photographs of all kinds on the desks of all employees, a denial to the gay employee is not discriminatorymerely unreasonable.

Some older cases maintain that lesbians and gay men, even when otherwise protected from discrimination, may not "flaunt" their homosexuality. In one opinion rendered in 1976, a federal appellate court upheld the dismissal of a clerk typist for the federal Equal Employment Opportunity Commission (exquisite irony!) because he had engaged, in its words, in "open flaunting and careless display of unorthodox sexual conduct in public." His "flaunting" consisted in part of writing a letter to the commission that said, "I work for the E.E.O.C. and am openly Gay,'' and of instituting a lawsuit seeking the right to marry another man. 9 There has been little recent precedent on this question, and it is unclear how modern courts would look at it. At its core, the reference to "flaunting" in the older cases reflects nothing more than a desire to suppress gay people and a total violation of the principle of evenhandedness articulated above. Can an employer offer benefits to married employeessuch as health benefits for spousesthat are denied to single employees, and therefore lesbian and gay employees?

Many employers offer special benefits to employees who are marriedfrom health insurance to bereavement leaveand such benefits can substantially increase the compensation those employees receive. In several recent cases, lesbian and gay employees have challenged the legality of such plans, claiming that they amount to discrimination on account of sexual orientation (since gay couples are denied the right to marry and are therefore unable to obtain the benefits through that avenue) or discrimination on account of marital status. The only appellate decision on this question, rendered in 1985 by a court in California, rejected both arguments. 10 Other cases are pending.