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Is Sexual Orientation Discrimination Legal?

Ms. Flood was a customer service employee at a Bank's 24-hour call center in Maine from July 24, 2006, through October 1, 2010. In March 2009, Ms. Flood met a woman named Keri who cleaned at the call center where Ms. Flood worked. The pair began dating in October 2009 and would frequently spend their break time together. In April 2010, Ms. Flood was at a bank social event and was sitting at the Lesbian, Gay, Bisexual, Transgender ("LGBT") table. Ms. Flood's supervisor, Ms. Castle, approached the table and saw a photo of Ms. Flood embracing her girlfriend at a local bar. Ms. Castle appeared shocked and quickly walked away. After seeing the photo, Ms. Castle contacted the LGBT table's sponsor and complained that the picture was offensive because it depicted alcohol; the sponsor then removed the photo from the premises.

Although prior to the April photo incident, Ms. Castle engaged with Ms. Flood in a friendly manner, after seeing the photo, the relationship changed. Ms. Castle stopped saying hello, made disparaging remarks about Ms. Flood's hair and eating habits, and began to inquire about her relationship with Keri. Ms. Flood also began receiving unduly critical feedback on her work. Further, Ms. Flood was instructed not to discuss her personal life and she was not allowed time off to attend LGBT affinity group meetings, distinctly from other similar co-workers who were allowed to attend the Bank's various other affinity groups. Additionally, although brief social visits from co-workers and partners were not uncommon at the call center, Ms. Castle told Ms. Flood that for "perception" purposes, it was, "not a good idea to have her girlfriend hanging around." Ms. Castle also complained to Keri's supervisor causing her to receive a verbal warning. Ms. Flood contacted Ms. Castle's supervisor, Mr. King, to ask if she should report the harassment. Mr. King told her not to report it. Thereafter, Ms. Flood began to receive verbal warnings for small infractions which were previously unmentioned.

In September 2010, Ms. Flood left her position based on the harassment stating that she felt she was being treated differently because of her sexual orientation. The Bank then terminated her for job abandonment. Ms. Flood filed a Charge of Discrimination with the Maine Human Rights Commission ("MHRC") alleging employment discrimination and defamation. The district court granted summary judgment on Ms. Flood's claims. The Court of Appeals vacated the granting of summary judgment on the discharge and hostile work environment claims and remanded the case for further proceedings.

Currently there is no federal law that protects people from workplace discrimination on the basis of sexual orientation in the private sector. (Federal employees are protected from sexual orientation discrimination). However, this type of discrimination is illegal in many states including Colorado. Colorado recently expanded the Colorado Anti-Discrimination Act ("CADA") to include prohibition for acts of discrimination against a person based upon that person's sexual orientation in employment, housing, and public accommodations. Sexual orientation means heterosexuality, homosexuality, bisexuality, and transgender (which means having a gender identity or gender expression that differs from societal expectations based on gender assigned at birth). Gender identity is that person's innate sense of his or her own gender. Gender expression is a person's external appearance, including characteristics or behavior which is typically associated with a specific gender.

If you have a question about discrimination on the basis of sexual orientation, contact us at www.BryanKuhnLaw.com/ to discuss your legal rights.

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