From the time I began practicing employment law (too many) years ago―and probably for longer than that―employment lawyers have been quite comfortable advising clients that Title VII of the Civil Rights Act of 1964 (the federal law that prohibits discrimination based on gender and other protected status) does not cover sexual orientation. Many states’ laws don’t prohibit discrimination based on sexual orientation, either. In other words, when it comes to homosexual or bisexual employees, discriminate away.
However, it has become fairly clear that such glib advice is incomplete and perhaps even wrong not just from an ethical standpoint but also in terms of legal liability. This article provides an overview of some changes and developments to be mindful of when addressing sexual orientation issues in the workplace.