Fighting Sexual Orientation Discrimination on the Job
Workplace discrimination on the basis of one's actual or perceived sexual orientation (or sexual identity) is not explicitly prohibited by federal law, although an executive order prohibits such discrimination among federal employees. Some states and local jurisdictions do in fact designate lesbian, gay, bisexual and transgendered (LGBT) individuals as part of a protected class, protecting them from workplace bias in ways similar to other forms of discrimination.
But even in states where no such protections exist, victims of sexual orientation discrimination sometimes have other legal remedies available to them.
LGBT Discrimination: First Steps
The following basic steps will help you get started, regardless of whether your state or local jurisdiction explicitly prohibits sexual orientation discrimination. Contact an employment lawyer if you have additional questions.
- Collect and preserve any available evidence of the discriminatory conduct, such as email or phone messages, and compile a list of witnesses.
- Keep copies of any favorable employment reviews, congratulatory emails and related correspondence.
- Review your company's workplace policies and/or your union contract for information about grievance procedures, reporting processes, and contractual rights.
- If workplace policies prohibit discrimination based on sexual orientation and/or gender identity, it is often best to start with reporting the matter to the appropriate workplace contact (often in HR).
- If no relief is available via workplace complaints, check whether state or local anti-discrimination laws apply to LGBT individuals, and consider filing a complaint with the appropriate agency. If not, consider asking a labor attorney about other legal options.
Any documentation of alleged discriminatory offenses should be maintained at home (not in the workplace). Keep in mind that unscrupulous employers hoping to avoid legal trouble may attempt to destroy or alter positive performance reviews or evidence of wrongdoing. In addition to evidence, take detailed notes about each discriminatory incident, the date/time/location it took place, and the people involved.
If Your State/Local Government Prohibits LGBT Discrimination
At least 20 states and the District of Columbia (and some local governments) have laws prohibiting employment discrimination on the basis of one's sexual orientation. Of these, 12 states and the District of Columbia also prohibit discrimination on the basis of gender identity (mainly covering transgendered people).
See Sexual Orientation Discrimination in the Workplace for a complete list of states that have laws prohibiting LGBT discrimination.
For specific information about how to file a claim of discrimination, see FindLaw's directory of State Labor Agencies or speak with a labor attorney in your state.
If You Are Not Protected by State/Local Laws
If your state or local laws do not explicitly outlaw discrimination against lesbian, gay, bisexual and transgendered employees, you may still have recourse based on your employer's policies, as describe above, or other federal or state labor laws.
For example, someone who is harassed at work for their real or perceived sexual orientation or identity may be able to file a sexual harassment lawsuit against the perpetrator. Sexual harassment may include inappropriate sexual propositions, sexually suggestive gestures, sexual overtones, sexist jokes, and other such offenses. Sexual harassment laws apply equally to people of all genders and sexual identities, and may be an option in these types of cases..
You may also be able to file suit for violation of an employment or union contract, if either document expressly bars discrimination on the basis of sexual orientation or gender identity, and the employer and/or union failed to abide by those terms.
Other legal theories that may stem from an act of discrimination include negligent or intentional infliction of emotional stress; assault; battery; invasion of privacy; and defamation.