Many states, including New York, Massachusetts and Connecticut, prohibit employment discrimination based upon an individual’s sexual orientation.  Federal law (i.e., Title VII) prohibits employment discrimination because of an individual’s sex.  It does not, however, expressly prohibit discrimination based on an individual’s actual or perceived sexual orientation.  Recently, federal courts have started to conclude that discrimination on the basis of sexual orientation is a form of sex discrimination because it inherently involves gender stereotyping and “notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality.” 

In a recent case, decided on May 3, 2017, a New York federal court refused to dismiss a claim for sexual orientation discrimination under Title VII in Philpott v. State of New York, finding that sexual orientation discrimination is a form of sex discrimination because “sexual orientation cannot be defined or understood without reference to sex.”  As the court observed, the plaintiff’s allegations could potentially support a claim of gender stereotyping discrimination.  The allegations included statements attributed to the President of SUNY Optometry that referred to the plaintiff as “sensitive,” “flamboyant,” and “frenetic.”  This same official told the plaintiff that “separate but equal treatment of gay people might be best,” and that upon learning that plaintiff’s relationship with his domestic partner had ended, this official told the plaintiff that “this marriage, or whatever you want to call it, is a distraction to the College.”  

A finding that Title VII prohibits sexual orientation discrimination as a form of sex discrimination would not affect employers and employees in states such as New York, Connecticut and Massachusetts that already prohibit such discrimination.  Nevertheless, the federal court’s decision in Philpott highlights that even senior management officials in states like New York, where sexual orientation discrimination is already illegal, require training to remind them that stereotyping is discriminatory, and cannot be considered in workplace decisions.