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Sexual Orientation Discrimination in the Workplace

Federal and state labor law exists to protect you and give you employment rights, free from workplace discrimination.

Sexual Orientation Discrimination in General

Sexual orientation discrimination refers to harassment or differential treatment based on someone's perceived or actual gay, lesbian, bi-sexual, or heterosexual orientation. Many workplaces, and even a number of states, have policies and laws against sexual orientation discrimination. Be sure to check your states laws and your workplace policies. This harassment or differential treatment goes beyond being yelled at for being late. Although, being yelled at is unpleasant and may violate some unrelated company policy, it does not fall into the category of discrimination or harassment. Instead, things like being overlooked for a promotion, being given baseless write-ups or improvement plans, and wrongful termination, because the employer or manager disagrees with your sexual orientation are more along the lines of differential treatment. Harassment may include comments and name-calling regarding your sexual orientation, or even repetitive requests for dates.

Amy and Linda, a lesbian couple, are expecting their first baby. Excited for them, Tina circulated a card around the office for everyone to sign. When Manager Cindy, who had previously thrown all of the baby showers for the pregnant women in her office, tore up Amy and Linda's baby card, commented on how she would never have promoted Linda if she'd known she was gay, and wrote up each of them for disrupting company productivity, the couple contacted human resources. Human resources was able to talk to Cindy, reminding her of not only the company policy, but also the state law against sexual orientation discrimination. The couple's write-up was revoked, and although Cindy is entitled to her opinion, she learned how to not let it interfere with the management of her team. Had human resources not effectively handled the situation, Amy and Lisa may have had a legal claim against Cindy and the company.

Federal Law versus Local Law

There are federal laws that protect against workplace discrimination based on race, sex, national origin, age, religion, pregnancy status, and disability. Unfortunately, there is currently no federal statute prohibiting private sector sexual orientation discrimination in the workplace. However, if you work for the federal government, you are protected from sexual orientation discrimination. Several proposals to enact a law protecting employees from sexual orientation discrimination have been considered, with no success in them being passed.

Currently the Employment Non-discrimination Act of 2009, which would prohibit discrimination based on sexual orientation and gender identity, is being considered. The Employment Non-Discrimination Act (ENDA) has been introduced in Congress to ban discrimination based on sexual orientation and gender identity. The bill would prohibit employers from making decisions about hiring, firing, promoting or compensating an employee based on sexual orientation or gender identity. The ENDA also prohibits preferential treatment of gay, lesbian, bisexual, and transgendered employees as well as using quotas requiring an employer to hire a certain number of such employees. Neither of these acts has been passed, yet; thus, there is still no federal protection against sexual orientation discrimination in the workplace.

There are more sexual orientation discrimination laws at the state level. Almost half of the U.S. states, including the District of Columbia, have active laws that prohibit sexual orientation discrimination in both private and public workplaces. These states include

California Colorado Connecticut Hawaii Illinois
Iowa Maine Maryland Massachusetts Minnesota
Nevada New Hampshire New Jersey New Mexico New York
Oregon Rhode Island Vermont Washington Wisconsin

Additionally, a few states prohibit sexual orientation discrimination in only public workplaces, such as for state employees: Delaware, Indiana, Michigan, Montana, and Pennsylvania.

Still, if you live in a state that is giving you no protection, you should check with the local city and county government of your employer. Some local governments have established rules against sexual orientation workplace discrimination in the form of city ordinances. For more information about which local governments protect against sexual orientation discrimination, contact a sexual orientation discrimintaion advocacy group, such as Lambda Legal Defense and Education.

Company Policies

Whether you live in a state that has laws against sexual orientation discrimination or not, your company may have policies that prohibit sexual orientation discrimination. By law, these policies can be more, but not less, stringent than the state or local law's standards. So, if you live in Indiana, a state that protects public workers from sexual orientation discrimination, but not workers in the private sector, and you work for a public company, your company may have policies that protect against sexual orientation discrimination. Often times, these policies include disciplinary steps imposed on managers who engage in sexual orientation discrimination. These steps can include reversing any discriminatory action taken against the employee, and even terminating the manager. Be sure to check your own company's policies, and report any discrimination to your company's human resources department. If human resources does not remedy the issue, you may want to consult an employment or discrimination lawyer.

Gender Identity Discrimination

In addition to protecting workers from sexual orientation discrimination, some state and local governments also prohibit gender identity workplace discrimination. These states, in addition to the District of Columbia, include

California Colorado Hawaii
Illinois Iowa Maine
Minnesota New Jersey New Mexico
Oregon Rhode Island Vermont

Sometimes, in states without gender identity discrimination statutes, courts have used other antidiscrimination statutes, like gender discrimination, to include gender identity. If you have been discriminated against based on your gender identity, you may want to consult an employment lawyer to consider your options.

Other Applicable Laws

If after exploring your state's laws, local laws, and company policies, you still find yourself without avail, the employer's treatment may violate other employment rights, for which you could sue your employer or your coworkers. The following is a list of some employment law and labor law theories:

  • Negligent or intentional infliction of emotional distress
  • Harassment (behavior that causes emotional distress and serves no legitimate purpose)
  • Sexual harassment (even repetitive requests for dates)
  • Assault (threatening or acting as if the assaulter will touch you offensively)
  • Battery (offensive touching)
  • Invasion of Privacy
  • Defamation (communication that causes shame, ridicule, a lowered reputation, or employment or earnings to suffer)
  • Interference with an employment contract
  • Wrongful termination

If after evaluating your circumstances, you decide that you fall under one of these categories, contact human resources or consult an employment attorney.

If none of these options avail you, remember the other employment rights granted by federal employment laws. Consider if you are a victim of pregnancy discrimination (like Amy and Linda in our above example) or age, religion, disability, national origin, or racial discrimination. Sometimes, these types of employment rights violations overlap with sexual orientation discrimination. If your workplace has no protection against sexual orientation discrimination, and the treatment you suffer overlaps into one of the protected categories, you may have a claim and should consider consulting the human resources department or an employment lawyer.

Next Steps
Contact a qualified employment discrimination attorney
to make sure your rights are protected.
(e.g., Chicago, IL or 60611)

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