Sexual Orientation Discrimination: Guide to LGBTQ+ Employment Rights

Sexual orientation discrimination is not just a matter of legal statutes. It also reflects societal change. It's an area of law that has witnessed significant transformation. As our understanding of diversity and inclusion continues to evolve, so does the law.

All cisgender and transgender employees have employment rights due to anti-discrimination laws. An employee's sex or employee's sexual orientation gives no employer the right to harass them. This guide explores and clarifies topics related to employment rights.

Supreme Court Ruling on Sexual Orientation and Gender Identity-Based Discrimination

In Bostock v. Clayton County (2020), the U.S. Supreme Court ruled that unlawful discrimination based on sex includes discrimination based on sexual orientation and gender identity. This was the same decision for Altitude Express, Inc., et al. v. Zarda et al. (2018). As a result, Title VII of the Civil Rights Act of 1964 protects millions of LGBTQ+ Americans from workplace discrimination. Employers engaging in discriminatory behavior can face lawsuits under the Supreme Court decision.

Prior to the decision, the U.S. Equal Employment Opportunity Commission (EEOC) enforced Title VII to include discrimination against LGBTQ+ employees. This enforcement was subject to change by courts with different interpretations of the law.

There are also broader and more explicit protections for LGBTQ+ employees available under state law and the District of Columbia. In some municipalities, cities, and counties, many private sectors/private employers have created their own LGBTQ+ anti-discrimination policies.

Fighting Sexual Orientation Discrimination on the Job

The Civil Rights Act of 1964 recognizes fundamental human rights and prohibits discrimination against protected classes. Title VII of the Act prohibits employment discrimination on the basis of sexual orientation or gender identity. That means gay men, lesbians, and transgender people are part of a protected class.

In the same way that you cannot be discriminated against on the basis of your national origin or race, you also cannot be discriminated against on the basis of sex. Federal law entitles you to legal recourse when you experience sex discrimination.

If you have faced adverse employment actions based on your sexual orientation, you can take steps to strengthen your claim. You can:

• Collect and preserve evidence of discrimination
• Document your effectiveness at the job
• Familiarize yourself with 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.

Once you have taken these steps, you can file a charge of discrimination with the EEOC. The EEOC is the federal agency responsible for investigating workplace discrimination claims.

The EEOC will investigate your charge under federal discrimination laws. Once you have received the results, you can file a civil rights lawsuit in a federal court.

Additional causes of action may arise from sexual orientation discrimination. This includes, but is not limited to:

• Negligent or intentional infliction of emotional distress
• Assault
• Battery
• Invasion of privacy
• Defamation

A lawyer can give you legal advice about these claims and possibly others under employment law.

Guide to Your Employment Rights

To help you understand your rights and responsibilities, we've compiled a guide outlining key points. Much of this advice comes straight from the EEOC and the U.S. Department of Labor. This guide will empower you to recognize and address gender identity discrimination effectively:

• Simple teasing, offhand comments, or isolated incidents that aren't serious are not unlawful
• Frequent or severe harassment is unlawful, especially if it creates a hostile work environment or results in an adverse employment decision
• Harassment can include offensive remarks about a person's transgender status or gender transition
• The harasser can be anyone, including:
  • The victim's supervisor
  • A supervisor from another area
  • A co-worker
  • Someone who is not an employee of the employer (e.g., a customer or client)
  • The harasser can be of the opposite sex or the same sex
• Accidentally misusing a transgender employee's preferred name and pronouns is not unlawful
• It is unlawful to segregate employees based on actual or perceived customer preferences

The Office of Federal Contract Compliance Programs (OFCCP) enforces Executive Order 11246 and 13672, as amended. This order prohibits federal contractors and subcontractors from discriminating against employees. The OFCCP protects the rights of employees and job applicants of companies doing business with the federal government. You could have a right to a solution that makes things right if you've faced discrimination, including a promotion or back pay. If the OFCCP finds discrimination, it could punish the company by not letting them work on future federal contracts or canceling their current contracts.

Contractors have rules they must follow. They can't:

• Ask some employees or job applicants for info or IDs that they don't ask from others, like medical details related to their gender identity
• Stop employees and job applicants from using restrooms that match their gender identity
• Bully employees and job applicants because of their sexual orientation or gender identity
• Treat lawfully married same-sex spouses differently from opposite-sex spouses regarding benefits
• Treat same-sex partners in civil unions or domestic partnerships differently from heterosexual partners in similar relationships regarding benefits

Changing Laws

Laws that protect the LGBTQ+ community are rapidly changing. The Supreme Court, the federal government, and multiple states view sexual orientation and gender as constitutionally protected matters of individual privacy rights. An increasing number of local laws also protect gay and transgender people.

An attorney can help you determine the current status of the law.