Sexual Orientation Discrimination in Employment
In the past, members of the gay, lesbian, bisexual, and transgendered (GLBT) community have found little relief or protection from sexual orientation discrimination. In recent years, however, more attention has been given to GLBT needs; thus, more laws and regulations are being passed to protect against sexual orientation discrimination in the workplace.
Federal laws currently prohibit employment discrimination based on race, color, sex, religion, national origin, age, and disability, but not sexual orientation or gender identity. However, Congress is currently proposing a bill, the Employment Non-Discrimination Act (ENDA), which would make it illegal for private employers to discriminate based on sexual orientation. Without this bill, GLBT persons have no federal protection against employment discrimination in the private sector.
The federal government does prohibit sexual orientation discrimination and gender identity discrimination in the federal workplace. In 1998, President Clinton amended an executive order that includes "sexual orientation" as a protected class in the federal government's equal opportunity employment policy. This means that employees of the federal government and people applying for jobs within the federal government cannot be discriminated against based on their sexual orientation. In 2009, President Obama did the same thing for gender identity, but the remedies under this law are more limited.
Just because there is no federal law prohibiting sexual orientation discrimination in the private sector, does not necessarily mean that employers are free to engage in such discrimination. If an employer is in a city or state whose laws prohibit sexual orientation discrimination, that employer must follow that local or state law.
Today, California, Colorado, Iowa, Illinois, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia have policies that protect against sexual orientation and gender identity discrimination in employment. This protection applies to both the private and public sector. Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Nevada, New Hampshire, New York, and Wisconsin have laws that protect against employment discrimination based on sexual orientation, but not gender identity.
Just like the federal government prohibits employment discrimination against government employees, based on sexual orientation, many states have adopted similar state laws. Indiana, Kansas, Michigan, Ohio, and Pennsylvania prohibit discriminating against public employees on the basis of sexual orientation and gender identity. Arizona, Montana, and Virginia have laws prohibiting sexual orientation discrimination, but not gender identity discrimination, against public employees.
There are about 200 cities and counties across the U.S. that have laws prohibiting sexual orientation discrimination in the workplace. Check your state labor department or fair employment office to find out about your state, county, or city antidiscrimination labor laws, or visit www.lambdalegal.org to do a search by state of antidiscrimination laws.
Even in cities with no local or state laws, some private companies develop their own antidiscrimination policies. As long as these policies are more and not less protective of people's antidiscrimination interests, they are legally legit. An employee of one of these companies who feels that he or she has been discriminated against, as is defined by the company's antidiscrimination policy, should contact management or human resources. If a complained to personnel does not take the claim seriously, this employee may have a legal claim, such as breach of employment contract or breach of company policy, against the employer.
Other Legal Theories
A wise employer will not make decisions (like ones that are based on sexual orientation) that are not based on the employee's job performance and abilities alone, regardless of what applicable laws say. Besides discrimination, there are a number of legal theories under which employees who feel they have been discriminated against can sue:
- Breach of employment contract
- Public policy violation
- Invasion of privacy
- Intentional infliction of emotional distress
- Negligent infliction of emotional distress