LGBT employees are afforded no specific protections under Title VII or North Carolina law. However, some courts have found that an LGBT employee may have a viable claim of employment discrimination where the evidence shows that the employer relied on sex-based stereotypes or disapproval of gender non-conformity in making its adverse employment decision.
Preconceptions about what a man or woman should be or act like may lead an individual to treat someone who marries a person of the same sex or gender differently, not specifically because of the employee’s sexual orientation, but because in marrying a same-gendered person, the individual has not conformed to the discriminator’s beliefs or expectations about that individual’s gender role.
There are a number of ways that discrimination against someone who is gay or lesbian could be actionable under existing laws. Back in the 1980’s, the Supreme Court laid the foundation for such claims by extending the meaning of sex discrimination to cover situations in which an employer discriminates against a female employee for not dressing in conformity with societal expectations.
If a manager fires a male employee for being too effeminate or a female employee for being too masculine (either could occur regardless of the employee’s sexual orientation), the manager has discriminated on the basis of sex.
If an anatomically male employee is going through the process of gender or sex reassignment and decides to wear clothing traditionally worn by females, it would be discrimination on the basis of sex to treat that employee differently.
If a woman marries another woman and the employer denies her spousal benefits because it refuses to recognize their marriage, the employer could be liable for discrimination.
These situations might also give rise to religious discrimination claims. Title VII seeks to protect employees not only from discrimination on the basis of their religious beliefs, but also from forced religious conformity or adverse treatment because they do not hold or follow their employer’s religious beliefs. Courts have found that in order to establish a claim for religious discrimination, a plaintiff can show that her perceived religious shortcomings played a motivating role in the adverse action.
In the case of Terveer v. Billington last year, a federal judge in the District of Columbia found that an openly gay employee had sufficiently stated a claim for both sex discrimination and religious discrimination under Title VII. Terveer asserted that his supervisor confronted him about his homosexuality not being consistent with the supervisor’s conservative Catholic beliefs. He would also give Terveer religious lectures and had told Terveer at one point that his goal was “putting [Terveer]…closer to God…to save [his] worldly behind.”
The takeaway is that employers should only be concerned about an employee’s merits and not characteristics that have no real bearing on job performance. Employers should adopt and enforce broad and inclusive non-discrimination policies to protect LGBT employees from discrimination. Just because the law doesn’t explicitly cover sexual orientation as a protected category, it doesn’t mean the law doesn’t afford some limited protections to LGBT employees. The EEOC has made it a priority to pursue legal action against employers that discriminate or harass on the basis of sexual orientation or gender identity.