The past two decades have seen a dramatic shift in legal rights and protections for LGBT Americans. With the legalization of same sex marriage throughout the country with
Obergefell v. Hodges and United States v. Windsor (2015), it can be a little confusing figuring out what protections the LGBT community has, and where they are not protected.
One of the more contentious issues is sexual orientation discrimination in the workplace. Sexual orientation discrimination is when somone is harassed or treated differently based on their real or perceived orientation. Right now, there is a huge difference in employment safeguards for LGBT individuals based on where you live and work, as well as who you work for.
Federal law currently prohibits discrimination based on sex, race, national origin, religion, age, and disability. There are no current laws protecting someone based on sexual orientation from private employers, but they do exist for employees working for the federal government. During their 2019 session, the Supreme Court heard a series of cases tackling this very issue, as well as issues of gender identity.
Their decisions will have a huge impact on LGBT Americans in the workplace, but also on a number of instances of gender discrimination as well. The outcome of these cases will be released in summer 2020.
While federal law might be in a s transitory period at the moment, there are many states (as well as cities and counties) that have their own laws protecting sexual orientation and/or gender identity in the workplace. Some of these states ban discrimination based on sexual orientation in both the public and private sectors, while some only do so for public sector jobs.
The states that fully protect LGBT Americans in public and private employment as well as housing and public accommodations:
- Delaware (public sector only)
- New Hampshire
- New Mexico
- New Jersey
- New York
- Rhode Island
- Washington, D.C.
States with no explicit protections:
- North Carolina
- North Dakota
- South Carolina
While no laws exist to protect these LGBT citizens on a state level, there are some cities, counties, and other localities that have their own anti-discrimination ordinances. Check with your local officials or a local employment attorney to find out what states and places are protected.
As stated above, even though your state may not have any specific anti-discrimination statutes regarding employment, many cities, towns, and counties might have local laws covering that very topic. Larger cities are more likely to have these protections, but the only way to find out is to check with your local government or an employment attorney. In addition, there may be other ways that LGBT workers can receive compensation from their employer based on other legal theories than a sexual orientation discrimination lawsuit.
They can file a hostile work environment claim, stating that a pervasive atmosphere of harassment makes it impossible to do their job properly. If the facts fit the situation, they may also have the option to file a sexual harassment claim as well. A wrongful termination suit might give an unprotected LGBT worker a legal option as well, but once again, it depends on the facts of that person’s situation. So while there are some alternatives to laws protecting sexual orientation discrimination in states where there are none, it may take another type of lawsuit.
Another option to consider is company enforced protections based on corporate policy. Many corporations, both large and small, now specifically state that they will not discriminate based on sexual orientation, regardless of whether that particular state mandates protections or not. Many even offer the same benefits to same sex couples that they offer to their heterosexual employees, as well.
If the company you work for has such a policy and you find that a manager or other employee is violating it, you can report them through proper company channels. These tend to take the claims just as seriously as any other type of discrimination.
All legal issues can be tricky, of course, but the patchwork and ever-changing nature of LGBT workplace protections can be especially confusing.
If you find yourself on the receiving end of improper discrimination, it is imperative that you seek the services of an experienced employment attorney to explain the law and any issues you might run into. Not only can they explain what legal protections you do or do not have, but can explain all your options and be your advocate every step of the way.