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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. 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.

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.  

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 discrimination 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

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

Talk to an Attorney Before Filing Your Sexual Orientation Discrimination Claim

When discrimination occurs it can make you feel that you haven't got any power, but that isn't the reality if you know where to seek legal help. The assistance of a legal professional can help you regain your confidence, assert your rights, and get the compensation you deserve. Find a local employment law attorney experienced with such cases today.

Next Steps

Contact a qualified employment discrimination attorney to make sure your rights are protected.

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