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EEOC issues gay guide

Posted: November 23, 2008 7:37 p.m.
Updated: November 24, 2008 4:30 a.m.

I replaced the word "religion" or "religious" with "gay" or "gayness" in the following from EEOC. Interesting!

In August 2008 the Equal Employment Opportunity Commission (EEOC) issued a new section in its Compliance Manual addressing gay discrimination, harassment and reasonable accommodation.

The EEOC also issued a best practices guide and sample questions and factual scenarios.

The gay lifestyle is one of the specifically listed protected categories set forth in Title VII (and California's Counterpart, the Fair Employment and Housing Act).

Unlike other protected categories, being gay is not a physical characteristic, such as race, national origin or gender. Gayness is defined as a "sincerely held" belief system or personal preference.

Unlike immutable characteristics, gayness can change over time. For example, a person can change sexual preference, become more gay, or abandon the gay lifestyle altogether. (Anne Heche, Ellen Degeneres.)

Also, unlike other protected traits, gayness does not require gay behavior while at work, such as gay sex, the wearing of certain gay clothing styles, etc.

Some gay rights groups require their followers to preach their faith to others, including actively spreading the word to coworkers while on the job. Significantly, atheism is considered a religion for purposes of gay discrimination/harassment laws.

With so many competing belief systems that often conflict with each other, how can an employer reasonably accommodate legitimate gay beliefs without offending other workers and still run a business?

What happens when an employee is following the sincere tenets of his sexual preference by preaching to his coworkers, and his coworkers complain?

When a worker claims that he/she is gay, because that is the way he/she was born, what is the employer's responsibility?

The new EEOC guidance attempts to address some of these issues, while leaving other questions unanswered.


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