Sexual orientation discrimination is a quickly moving area of law. Unlike the other areas of employment discrimination, there is no federal statute that explicitly prohibits employment discrimination based on sexual orientation. However, there have been Supreme Court cases and Executive Orders that prohibit such discrimination under Title VII of the Civil Rights Act. Certainly, the EEOC is enforcing Title VII to include discrimination against LGBTQ employees. However, since this enforcement is based on judge-made law and Executive Orders, it is subject to change by administrations or courts that have different interpretations of the law.
Broader and more explicit protections for LGBTQ employees are available under state law. However, whatever protections that may exist depends on each state's laws. In the states that do protect employees against sexual orientation discrimination, the procedures, penalties, and other rules tend to closely follow those for other kinds of discrimination, and often the same agencies that enforce other types of discrimination protections also enforce the protections against sexual orientation discrimination.
Read through the articles in this section for more information on sexual orientation discrimination and keep checking back as this area of law continues to unfold.
Fighting Sexual Orientation Discrimination on the Job
Federal law does not explicitly prohibit workplace discrimination on the basis of one's actual or perceived sexual orientation or identity. Some states have designated lesbian, gay, bisexual and transgendered (LGBT) individuals as a protected class entitled to legal recourse when they experience workplace bias. Even in states that have not introduced legislation of this kind those experiencing discrimination or harassment may still be other legal remedies available to them.
Regardless of the jurisdiction's current position on sexual orientation discrimination there are steps that can strengthen your claim by collecting and preserving evidence of discrimination, documentation of your effectiveness at the job, and by understanding your company's workplace policies and protections. A local employment lawyer's assistance can help identify legal remedies and additional steps to pursue a claim.
If you state does not explicitly outlaw discrimination against LGBT employees, you may still have recourse based on employer policy or other state or federal labor laws. Employees that are subject to an employment or union contract may have grounds for a lawsuit if the contract bars discrimination on the basis of sexual orientation or gender identity. Other causes of action that may arise from sexual orientation discrimination include negligent or intentional infliction of emotional distress, assault, battery, invasion of privacy, and defamation.
Laws for the protection of the LGBT community are rapidly changing. The federal government and an increasing number of states have indicated that they view sexual orientation and identity as a constitutionally protected matter of individual privacy rights. The Employment Non-Discrimination Act (ENDA) would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by employers with at least 15 employees. ENDA has been introduced into nearly every congressional session since 1994. Although it has not managed to pass both House and Senate during this time it has managed to pass the Senate several times in recent years and it appears to be gaining bipartisan support.
As previously mentioned, an increasing number of states have LGBT discrimination laws on their books, with nearly half of the states, including the District of Columbia, prohibiting sexual orientation or gender identity discrimination. States that lack such laws may have city ordinances protecting against sexual orientation discrimination. Finally, many companies have implemented policies that protect against sexual orientation discrimination. As always, an attorney's assistance can be helpful in determining the current status of the law and your rights.