If you are a member of the LGBTQ community, you have probably experienced some level of harassment and discrimination in your life, whether it be against your social, housing, or employment status. If you have been lucky enough to live in a welcoming area, you may have had a majority of good experiences. However, in many areas of the country, being gay, queer, transgender, or gender nonconforming means you are denied the basic rights afforded to your heterosexual peers.
Many of these experiences happen at work, which may lead you to question your employment rights. According to Out & Equal Workplace Advocates, a nonprofit dedicated to LGBTQ workplace equality, “One out of every 25 complaints made about workplace discrimination comes from LGBTQ employees,” while 21 percent of LGBTQ employees report some form of workplace discrimination overall. Whether or not you are protected against LGBTQ employment discrimination depends on federal and state law—in fact, only 21 states and the Washington, D.C, currently have laws explicitly prohibiting discrimination based on sexual orientation and gender identity.
If you live in a state without explicit LGBTQ protections and you are one of the many LGBTQ Americans currently facing harassment or discrimination at work, legal recourse is available. An experienced employment attorney can help you better understand your options.
Federal protection under Title VII
Title VII of the Civil Rights Act of 1964 is one of the main federal protections for employees. This law, if you work for an employee with 15 or more employees, protects you from discrimination based on your sex, race, color, national origin, and religion. An employer cannot discriminate against you in terms of your compensation, job duties, benefits, and chances for training and promotions because of these factors. If they do, then you may have the right to file a claim with the Equal Employment Opportunity Commission (EEOC).
The EEOC reads Title VII as protecting members of the LGBTQ community based on the prohibition against sex discrimination.
“Title VII, as it is currently written, does not expressly protect any form of sexual orientation or sexual expression discrimination,” says Steven M. Warshawsky, the founder and principal of The Warshawsky Law Firm. “However, the U.S. Supreme Court in Price Waterhouse v. Hopkins (No. 87-1167), said a form of unlawful sex discrimination is discrimination based on gender stereotyping. The gender stereotype theory has been used quite effectively to get courts to agree that Title VII covers sexual orientation discrimination even though it doesn’t say it in the statute. The EEOC agrees with that position as well as some federal circuit courts, including the Second Circuit Court of Appeals.”
The Department of Justice (DOJ) under the Trump Administration takes a different position. The DOJ stated in an amicus brief in a court case that it is not illegal under federal law to fire an employee based on their sexual orientation.
What does this mean for you? If you have experienced discrimination at work for being a lesbian, gay, bisexual, transgender, queer, or gender non-conforming individual, you need to speak with an experienced employment discrimination attorney. You may have the right to file a claim with the EEOC and obtain a good outcome in your situation.
However, if you must take your situation to court, it is difficult to predict the outcome of the case. “The EEOC and case law have interpreted the existing prohibition on sex discrimination in Title VII to protect LGBTQ applicants and employees against employment discrimination,” says Tammy L. Riddle, Esq., Member of Hurwitz & Fine, P.C. “However, the risk that flows from no express prohibition is that as administrations and judges change, interpretation of the law can change leading to conflicting opinions.”
LGBTQ protections by state
As of January 2019, 21 states and Washington, D.C., have statutes protecting sexual orientation and gender identity at work:
- New Hampshire
- New Jersey
- New Mexico
- New York
- Rhode Island
If you face employment discrimination for being a member of the LGBTQ community in one of these states, your lawyer may advise you to focus on a state-level claim.
For instance, “employees have many options in New York if they believe they have been discriminated against due to their sexual orientation or for being transgender,” says Riddle. “This is currently an exciting time for the LGBT community as earlier this year, Gov. Andrew Cuomo signed into law the Gender Expression Non-Discrimination Act. GENDA adds gender identity and gender expression as protected classes to our state’s human rights laws and also makes offenses based on gender identity or expression hate crimes.”
Wisconsin protects sexual orientation only and not gender identity for employees. Whether or not you are protected from employment discrimination there depends on your specific experience. You may have a state-level claim, or you may need to rely on federal law.
Eight states protect public employees based on their sexual orientation and gender identity: Indiana, Kentucky, Michigan, Montana, Ohio, Pennsylvania, Virginia, and Wisconsin. Four states prohibit only sexual orientation discrimination against public employees: Alaska, Arizona, Missouri, and North Carolina.
The other 17 states do not have employment discrimination laws related to sexual orientation or gender identity. If you face employment discrimination in these states, you must discuss federal protections and other options with your lawyer.
Where can you turn for help?
An attorney will be your most valuable resource when it comes to filing a discrimination complaint against your employer. Beyond seeking legal representation, nonprofit organizations across the country dedicated to the rights of LGBTQ individuals offer additional resources and have the added benefit of connecting you to the LGBTQ community in your state or city. A full list of organizations dedicated to LGBTQ rights and advocacy is available on Center Link, a member-based coalition connecting LBGTQ centers nationwide.
No one should accept discrimination or unfair treatment at work. With legal and community support, you won’t have to fight alone.