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Discrimination Against Gay Employees

Question:

A gay employee is responsible for observing the collection of urine specimens from patients.  From a discrimination perspective, can patients refuse to permit this gay employee to observe the collection of the urine specimen to ensure it belongs to the patient? In some instances urine screens are being taken without this employee’s knowledge until after they are collected.

Answer:

There are several components to this scenario which need to be addressed. First, a question has to be asked: has the gay employee been assigned the urine collection duty as a way to punish him because of his sexual orientation, as a not-so-funny joke? That’s what the first sentence of this scenario implies. Under both Ohio and Federal law, there are no employment law protections for gays or lesbians. In other words, sexual orientation is not a protected class under Title VII of the Civil Rights Act. Gays and lesbians can be legally discriminated against in terms and conditions of employment (and work assignments fall into this category). However, it certainly isn’t a smart business practice to discriminate against any employee because of their sexual orientation.  Managers are best served by making assignments based on competencies and skills.

Patients can legally refuse to have a gay employee observe them giving a urine specimen.  The best way to address this issue is to 1) educate patients about the process and the discreet and confidential nature in which the employee will observe the process, and 2) ensure the employee observing the process is trained to be competent and professional.

Another question to be addressed is, who is observing the specimen process if the employee assigned this task is not fulfilling his obligation? If an untrained employee has been taking on this task that might provide legal liability for the organization if mistakes are later discovered.

Strategic HR, inc. knows that keeping abreast of legal compliance issues can be daunting, especially when the laws keep changing. We can help you stay compliant by offering resources to help you identify and mitigate compliance issues, such as our HR Audit which helps identify trouble spots in your HR function.