Sexual Orientation Discrimination: A Title VII Case Study

This article was originally published in the May/June 2023 issue of Med-Surg Nurse Life Magazine.

Charlie is an openly gay nurse in a busy medical- surgical unit. The day charge nurse, Sarah, frequently refers to Charlie as “one of the girls” and has told Charlie he cannot wear eye makeup to work although there is no policy against it. Sarah frequently assigns Charlie the most difficult patients, patients known to be lesbian, gay, bisexual, or transgender (LGBT), and those in rooms furthest from the nurses’ station. Sarah often states to other co-workers that gays and queers are sinners and would ultimately be punished.

Although a charge nurse’s duty is to monitor patients when a nurse is not present on the unit, Sarah told Charlie he needed to find someone else to monitor his patients because she had too much work to do. When Charlie mentions his husband, Sarah whispers “gross” or makes faces. When staff baby showers occur on the unit, Charlie is left to monitor the patients, because staff would be uncomfortable with his presence. Charlie requested to join a unit committee for career progression, but Sarah told him there are no appropriate committees for him. After bringing these incidents to the unit supervisor’s attention, Charlie was told his schedule would be changed so that he did not work the same shift as Sarah,which resulted in Charlie being scheduled to work almost every weekend. Charlie resigned because of the stress and anxiety resulting from Sarah’s ongoing behavior.

This scenario forms the backdrop for a potential claim of discrimination and harassment under Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination against employees based on their status as a member of a protected class. In 2020, the United States Supreme Court in Bostock v. Clayton County ruled that Title VII’s prohibition on discrimination “because of sex” includes discrimination based on sexual orientation and gender identity.

To state a Title VII sexual orientation discrimination claim, Charlie would have to prove that he identifies as gay and is protected under Title VII; he is qualified for and performs his job satisfactorily; he was subjected to a hostile work environment (HWE) or an adverse employment action; he must produce evidence of discrimination based on his sexual orientation; and that other similarly situated employees who do not identify as LGBT were treated more favorably.

A HWE occurs when an employee is subjected to unwelcome behavior, comments, or actions in the workplace based on the employee’s status in a protected class when such behaviors are severe or pervasive enough to create an abusive or intimidating environment. Sarah’s comments and behaviors created a HWE for Charlie. Even if Sarah’s individual comments or actions may seem insignificant, they show a pattern of conduct targeted at Charlie’s sexual orientation.

Charlie must also establish that his employer knew about the harassment but failed to take prompt and corrective action. In this scenario, Charlie reported the incidents to the unit director who failed to take appropriate corrective action. Instead, the unit director’s actions constituted an adverse action against Charlie.

If a nurse or employee who identifies as LGBT believes they are being subjected to discrimination or harassment, it is important to document offensive actions, comments, and behaviors. To do so, keep a diary or journal and write down as many factual details as possible, including date, time, location, names of individuals who witness or participate in the conduct; save any physical evidence such as emails, text messages, or notes; and report the behavior. For more information, visit www.eeoc.gov.