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  • Sexual Orientation: Grounds for Wrongful Termination?

    It may come as a surprise that in seventy percent of the state of Pennsylvania, private employers are allowed to terminate employees solely on the basis of their actual or perceived sexual orientation. It may be even more unbelievable that Pennsylvania is merely one of at least four other states that forbid sexual orientation discrimination in only public workplaces. Currently, nearly one half of all Americans reside in jurisdictions where protection against discrimination because of sexual preference is not available. While Pennsylvania proscribes sexual orientation discrimination against public sector employees, such as those who are employed by state departments or agencies, and Executive Order 13087 sets forth a policy protecting federal government employees from sexual orientation discrimination, there is still no uniform national standard that requires businesses to enact safeguards in order to ensure workplace equality.

    It is unlawful in both public and private workplaces to discriminate based on sex, race, national origin, religion, citizenship, and poverty and such classifications are subjected to strict scrutiny, which is the  most exacting form of judicial review used by the courts.  However, sexual orientation is not deemed a suspect class, and private employers are therefore not bound by those federal laws which prohibit discrimination against particular types of sexual orientation or gender identity.

    A person’s gender identity is defined by his or her own perception of being male or female, while an individual’s actual gender refers to the physical attributes with which they were born. For example, a transgender individual’s gender identity likely does not correspond to his or her assigned gender.  Discrimination may include incidents such as being refused a promotion, being written-up or penalized for no apparent reason, and being wrongfully terminated simply because the employer disapproves of the employee’s sexual orientation.

    In the absence of a national model regulating workplace conduct, it is left to the cities, states, and specific employers to make the decisions as to what characteristics and qualities are worthy of protection. Some businesses have taken it upon themselves to implement their own policies prohibiting certain conduct, and they have established disciplinary procedures for managing it.  However, at places which have chosen not to adopt specific protective laws, employees may still bring suit against their employer under theories such as intentional or negligent infliction of emotional distress, harassment, assault, and battery. For example, a homosexual employee who is fired entirely on account of his or her sexual orientation will find no remedy under federal or Pennsylvania law, while an employee who is sexually harassed will have a valid cause of action even if that harassment was founded upon the harasser’s belief that the employee was not acceptably “masculine” or “feminine”.

    Although California has laws that prohibit sexual orientation discrimination in both public and private places of work, an Orange County employee who is unsuccessful in a claim of such discrimination may wish to consult a wrongful termination lawyer in Santa Ana about suing his or her employer under one of the applicable aforementioned legal theories, as they apply to the entire general population.  A wrongful termination lawyer in Santa Ana may also be able to help both employees and employers in addressing discrimination problems by suggesting and assisting in the creation of clear and non-discriminatory internal policies and procedures that could pass muster under California law.

    An increasing number of municipalities are ordering and expanding anti-discrimination protection, and a recent poll reports that sixty-nine percent of Pennsylvanians support proscribing employers’ discrimination based on employees’ sexual orientation and gender identity. However, achieving equality in the workplace is no easy task.  While wrongful termination lawyers in Santa Ana must simply be creative in their interpretation of the law in order to offer their clients a cause of action, Pennsylvania’s lawyers, and the majority of its citizens must hope and wait for new legislation to be passed.