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Employment discrimination based on sexual orientation: The American, Canadian, and UK response

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  • Introduction: One of the last frontiers in American civil rights protection concerns the extent to which lawmakers-both legislative and judicial-show a willingness to prohibit workplace discrimination based on sexual orientation. Regrettably, the record of the United States has been less than exemplary. Human rights legislation covering sexual orientation is limited to a few states and localities, gay and lesbian employees enjoy no federal protection from employment discrimination and, generally speaking, the judiciary has displayed a reluctance to defend expansively the rights of the nation's "homosexual"' minority. The failure to address discrimination based on sexual orientation not only sanctions unjust treatment of gay and lesbian employees, but also perpetuates societal prejudice. The objective of this Article is to compare America's responses to employment discrimination based on sexual orientation with the Canadian and United Kingdom (U.K.) responses. It will become clear that Canada leads in the judicial and legislative defense of sexual orientation rights while the U.K., though potentially at the cross-roads between protecting and disregarding the human rights of homosexuals, is more closely aligned with the American approach of non-protection, if recent developments in the case law of the European Court of Justice are any indication. The Article is divided into several parts. Each part compares the U.S., Canadian and U.K. responses to discrimination based on sexual orientation. Part I references studies and commentary from elected officials to reveal anti-homosexual attitudes and the problems those attitudes present for protecting gay and lesbian employees. Part II explores constitutional protections against sexual orientation discrimination. Part III highlights the extent to which the gay or lesbian employee can find protection through human rights legislation. Part IV turns to the common law and considers its competence to protect gay and lesbian employees from discrimination. The Article concludes by emphasizing the importance of legislative intervention to protect employees from sexual orientation discrimination in the workplace. Such legislative action would provide an alternative to inadequate law protections and also serve as a symbol of solidarity between the state and homosexuals.

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    Article (Published)
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    © 1999 Law & Inequality: A Journal of Theory & Practice. This version of this article is open access and can be downloaded and shared. The original author(s) and source must be cited.
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    • O'Byrne, S., Cohen, R., & Maxwell, P. (1999). Employment discrimination based on sexual orientation: The American, Canadian, and UK response. Law & Inequality: A Journal of Theory & Practice, 17(1), 1-56.