CHAPTER NINE

Affinity Orientation Discrimination

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved.

9-3

Title VII of the Civil Rights Act of 1964 does not prohibit discrimination based on sexual affinity

Sexual affinity describes whom one is attracted to for personal and intimate relationships

Statutory Basis

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved.

9-4

Although not covered in Title VII, many state laws and local ordinances include affinity orientation as a prohibited basis for employment discrimination

Employees should not allow their personal beliefs to increase liability to their employer

Many companies now have gay and lesbian support groups

Out of the Closet

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved.

9-5

More companies are extending benefits to domestic partners

Focus should be on the employee’s workplace performance

Title VII does not include same gender affinity orientation, bi-gender affinity orientation, transsexuals or effeminacy in males

Gay and lesbian employees have also brought action under the 1st, 5th, or 14th amendment

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved.

9-6

May also bring tort actions Employers may still be liable under

gender discrimination and gender stereotyping

Affinity orientation much less settled than other types of discrimination

Employers need to be aware of changes in state laws and local ordinances as well as potential changes in federal legislation

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved.

9-7

Employment decisions should be based on the employee’s activity rather than status or orientation

Employers need to be sure that no facts exist that would subject them to liability for other causes

Employers may impose reasonable rules about workplace appearance

Affinity Orientation as a Basis for Adverse

Employment Decisions

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved.

9-8

Employment decisions should be based on the employee’s activity rather than status or orientation

Employers need to be sure that no facts exist that would subject them to liability for other causes

Employers may impose reasonable rules about workplace appearance

Courts have not upheld the position that those who change their gender from male to female are protected

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved.

9-9

Same-Gender Sexual Harassment

U.S. Supreme Court ruled that harassment of an employee by someone of the same gender is prohibited unless shown that the harassment was based on affinity orientation

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved.

9-10

Transsexual Discrimination

One of the fastest growing issues related to affinity orientation

Some state and local laws include transsexuals in their protection for gays and lesbians

Suits for gender discrimination have been unsuccessful

Suits filed under the Americans With Disabilities Act have been unsuccessful

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved.

9-11

Employment Benefits

One of the most active issues regarding affinity orientation in the workplace

Although civil rights ordinances may not protect them, many gays and lesbians want corporate nondiscrimination policies including– Bereavement leave– Vacation transfer– Benefits for domestic partners

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved.

9-12

ManagementConsiderations

Hire using work-related criteria Ask only relevant questions about

applicants’ personal lives Have a policy ensuring respect for

all employees Make any policies fair and evenly

handled Take prompt action when there are

violations of policies