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Acting gay offers workers legal protection but being gay does not

An Atlanta appeals court decision over the firing of a lesbian security guard has upended the definition of sex-based discrimination used by the Equal Employment Opportunity Commission (EEOC).

In a case that could have far-reaching implications, a security guard who worked for a Georgia hospital filed a workplace discrimination lawsuit. She alleged that she was harassed and ultimately fired because of her sexual orientation. Her lawsuit, which was taken up by civil rights group Lambda Legal and supported by briefs filed by the EEOC itself, was denied.

This essentially halts the expansion of federal workplace protections to gays and lesbians under Title VII of the Civil Rights Act of 1964, despite the fact that the EEOC clearly interprets discrimination based on sexual orientation to fall under discrimination based on sex in general.

The decision of the 3-judge appeals court was not unanimous -- and Lambda Legal plans to file an appeal with the entire 11th Circuit court.

Perhaps the most peculiar thing about the ruling, aside from the fact that it is denying federal protection to a class of individuals that the EEOC -- a federal agency -- already says is protected, is the logic put forth by the judge giving the majority opinion.

In his ruling, the judge stated that if the former security guard had pressed her lawsuit based on the idea that she was fired for acting gay, since she was harassed for dressing too manly and not carrying herself the way most women carry themselves, she might have prevailed. The judge agreed that being fired for "acting gay" would have violated the Civil Rights Act because that's discrimination for not complying with the stereotypical norms of a person's gender.

In a dissenting opinion, the lone judge to disagree with the ruling stated that she found the majority opinion to be in "defiance of logic" because any woman alleging that she was fired for being a lesbian is, by necessity, alleging that she was fired for not conforming to stereotypical gender norms -- which dictate that women should be sexually attracted to men.

If you're faced with discrimination based on your sexual orientation, keep in mind that state laws can sometimes be more expansive than federal law. California, for example, extends discrimination protection to gays and lesbians at the state level. For more information or advice on workplace discrimination, contact an attorney.

Source:, "Law allows workplace discrimination against gays, lesbians, Atlanta court rules," Bill Rankin, March 13, 2017

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