In the past two decades, there has been a dramatic shift in legal rights and protections for members of the LGBTQ community. In 2015, with the cases of Obergefell v. Hodges and United States v. Windsor, same sex marriage was legalized throughout the country.
With all of these recent changes, it can be confusing to determine what protections are available for the LGBTQ community. It may also be confusing to determine in what areas they are not protected.
One common issue which causes contention is sexual orientation discrimination in the workplace. Sexual orientation discrimination occurs when an individual is harassed or treated differently based upon their real or perceived orientation.
At this time, there are large variations in employment safeguards for LGBTQ employees depending upon where they live and work as well as what companies they work for. There are state and federal laws which provide legal rights and protections, including:
- The Hate Crime Prevention Act, which used to limit violence that was only associated with race and religion. It is now, however, extended to sexual orientation, gender, and disability;
- Privacy. Based on the Supreme Court case of Lawrence v Texas, sodomy laws are generally prohibited by the federal government;
- Military Service. The policies of Don’t Ask, Don’t Tell were stuck down in 2011. LGBTQ individuals can now serve openly in the military branches. However, the status of transgender military members is currently being litigated and is unclear;
- Housing. In 2012, a federal agency issued a regulation to prohibit LGBTQ discrimination in federally-assisted housing programs to prevent housing discrimination. Every state, however, has its own sets of laws that may apply to private housing discrimination and how it applies to LGBT individuals; and
- Marriage. The United States Supreme Court held in the landmark case, Obergefell v. Hodges, that denying same-sex couples the right to get married violated a fundamental right and therefore was considered to be unconstitutional. Following this case, same-sex marriage is now generally lawful throughout the U.S.
Numerous states were expanding their LGBTQ rights before the federal government considered this issue. The passage of federal laws is paving the way for states to pass similar laws. Each year, the LGBTQ community is afforded more legal protections.
Are There Federal Laws on Sexual Orientation Discrimination?
There are federal laws which currently prohibit discrimination that is based on:
- National origin;
- Age; and
Currently, there are no laws which protect an individual based upon their sexual orientation from private employers. There are, however, some laws which protect employees who are working for the federal government.
The United States Supreme Court, during their 2019 session, heard a series of cases on the issue of protections based on sexual orientation as well as issues of gender identity. The decisions coming out of these cases will have a great impact on LGBTQ Americans in the workplace as well as several instances of gender discrimination as well.
In June 2020, the United States Supreme Court affirmed, in the case Bostock v. Clayton County, that federal laws which prohibit employment discrimination based upon sex also protects Americans from anti-LGBTQ discrimination.
What About State Law?
Although federal laws may be in a transitory state at this time, there are numerous states, as well as cities and countries, which have their own laws that protect sexual orientation and gender identity in the workplace.
Some of these states ban discrimination based upon sexual orientation in both the private and public sectors. In other states, the protections are only given to public sector jobs.
States which fully protect LGBTQ employees in the public and private sectors as well as in housing and public accommodations include:
- Delaware, in the public sector only;
- New Hampshire;
- New Mexico;
- New Jersey;
- New York;
- Rhode Island;
- Washington; and
- Washington, D.C.
States that have some explicit protections include:
- Wisconsin; and
States that do not have any explicit protections include:
- North Carolina;
- North Dakota;
- South Carolina;
- Virginia; and
Although there are no laws to protect these LGBTQ citizens at the state level, there are certain cities, counties, and other localities which have their own anti-discrimination ordinances. It is important for an individual to check with their local officials or a local employment attorney in order to determine what places and states provide protections.
What Can I Do if My State Does not Have Discrimination Protections?
As previously mentioned, even if an individual’s state does not have any specific anti-discrimination statutes regarding employment, there are many counties, cities, and towns which may have local laws that over these issues. It is more likely that larger cities will have these protections, but the only way to know for sure is for an individual to check with their local government or a local employment attorney.
Additionally, there may be other ways in which LGBTQ workers may receive compensation from their employer based upon legal theories other than sexual orientation discrimination in a civil lawsuit.
An individual in this situation may be able to file a hostile work environment claim and claim that the pervasive atmosphere of harassment makes it impossible to properly do their job. If the facts fit the requirements of the claim, the individual may also have the option of filing a sexual harassment claim as well.
Another option for an unprotected LGBTQ employee may be a wrongful termination lawsuit. Whether this option is available will depend upon the facts of the situation.
While there may be some alternatives available to laws which protect sexual orientation discrimination in states where there are no laws, it may require a different type of lawsuit.
What About Private Companies?
Another option an individual may consider is a company enforced protection based upon corporate policy. Many corporations, both small and large, now specifically state that they will not discriminate based upon sexual orientation, whether or not that particular state mandates protections.
Many employers also offer the same benefits to same sex couples as those that are offered to heterosexual employees. If the company an individual works for has the type of a policy and they find that a manager or other employee is violating that policy, they can be reported through the proper company channels. These claims tend to be treated as seriously as other types of discrimination.
Do I Need An Attorney For My Sexual Orientation Discrimination Issue?
It is essential to have the assistance of a discrimination lawyer for any sexual orientation discrimination issues you may be facing. Of course, all legal issues may be tricky, but the ever-changing nature of LGBTQ workplace protections may be especially challenging and confusing.
If you find yourself in a situation where you are being discriminated against improperly, it is important to seek advice from an attorney as soon as possible. They can explain the laws in your area as well as any issues which you may encounter.
Your attorney will be able to explain what protections are available to you, whether there may be alternative claims you can make, and advocate for your rights each step of the way. If you have to appear in court, your attorney will represent you.