One in four LGBTQ individuals have reported facing discrimination and harassment in the workplace. The unemployment rate for transgender individuals is three times higher than the national average. There is no federal law that expressly bars employment discrimination on the basis of sexual orientation or gender identity. At the federal level, most workers must rely on interpretations of Title VII of the Civil Rights Act that view gender identity discrimination and sexual orientation discrimination as subsets of sex discrimination, which is expressly prohibited under Title VII.
However, some states and cities provide express protection against LGBTQ employment discrimination, and often they provide protection to employees of small employers. Title VII only covers employers that have at least 15 employees. It is wise to consult an experienced employment attorney about the laws in your area that may protect you if you believe that you may have been mistreated in your workplace based on being lesbian, gay, bisexual, transgender, or queer.
Same-Sex Couples and Employment Benefits
In Obergefell v. Hodges, the US Supreme Court required all states to issue marriage licenses to same-sex couples and recognize same-sex marriages that were legitimately performed in other jurisdictions. In doing so, the Court overturned the ability to discriminate between opposite-sex and same-sex couples with regard to employment benefits as well. All same-sex couples are entitled to marry, and their employers cannot exclude their spouses from benefits based on the gender of the spouse. For example, an employer cannot decide that it will provide health insurance benefits to employees with opposite-sex spouses but refuse to provide these benefits to the same-sex spouses of their employees.
Additionally, retirement plans must provide equal treatment to same-sex spouses. In a 2013 Supreme Court case, the Court struck down a ban on federal benefits for same-sex couples that lived in states allowing gay marriage. As of 2013, all retirement plans governed by federal laws were required to provide all mandated spousal benefits equally to same-sex and opposite-sex couples.
Title VII of the Civil Rights Act expressly prohibits sex discrimination. The Equal Employment Opportunity Commission (EEOC), which enforces Title VII, has interpreted its prohibition against sex discrimination as including prohibitions against gender identity and sexual orientation discrimination. However, not all federal district courts and appellate courts take this position. Some courts and appellate courts have ruled that Title VII does not prohibit sexual orientation or gender identity discrimination. It is crucial to consult an experienced attorney about whether a Title VII claim for sexual orientation or gender identity discrimination is likely to be successful in your jurisdiction.
Sometimes greater protection is available against sexual orientation discrimination or gender identity discrimination under state or local laws. For example, the New York City Human Rights Law expressly prohibits gender identity discrimination and sexual orientation discrimination. Unlike Title VII, it applies to smaller employers and does not cap damages.
Sexual Orientation Discrimination
Sexual orientation discrimination occurs in the workplace when an employer treats an employee adversely due to his or her sexual orientation, whether he or she is asexual, bisexual, gay, lesbian, or transgender. For example, if your employer will not promote you because you are gay or because you are perceived to be gay, this would be sexual orientation discrimination. Courts are split on whether Title VII prohibits gender identity and sexual orientation discrimination.
In 2017, the US Court of Appeals for the Seventh Circuit ruled in Hively v. Ivy Tech Comm. College that sexual orientation discrimination in the workplace violated Title VII. The case arose when an instructor was denied full-time work and promotions after she was spotted kissing her girlfriend and was fired for being lesbian. Similarly, the US Court of Appeals for the Second Circuit has ruled that Title VII prohibits discrimination against gay employees. However, other appellate courts and several district courts have previously ruled that Title VII does not prohibit sexual orientation discrimination.
There are state and local laws that expressly forbid sexual orientation discrimination. When these laws exist, they may provide stronger remedies than does Title VII. Some of the states that prohibit sexual orientation discrimination in public and private workplaces include California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, New Hampshire, Rhode Island, Utah, Vermont, and Washington. Wisconsin also explicitly prohibits sexual orientation discrimination. Other states have executive orders prohibiting sexual orientation discrimination in public employment. Some cities and localities in states that do not provide protection against sexual orientation discrimination have enacted ordinances prohibiting it.
Sex Stereotyping Discrimination
Sex or gender stereotyping occurs when an employer discriminates against an employee for failing to conform to gender stereotypes. This discrimination can involve any adverse treatment related to sex stereotypes. The question is whether sex stereotypes played a role in an employment decision. For example, if an employer refuses to hire a job applicant because she does not seem feminine, this may be sex stereotyping under Title VII. However, using a sex stereotype as a criterion for an employment decision may not be prohibited if the employer can show that it is a bona fide occupational qualification (BFOQ).
Title VII of the Civil Rights Act
The EEOC’s position that Title VII prohibits sexual orientation and gender identity discrimination is based, in part, on Supreme Court precedent that prohibits sex stereotyping discrimination as a form of sex discrimination. Some federal district and appellate courts have adopted this reasoning. The Second Circuit has stated that sexual orientation is a function of sex, so sexual orientation discrimination is forbidden under Title VII. Several federal district courts have found that a transgender plaintiff could sue for discrimination using a sex stereotyping theory under Title VII. However, some federal courts disagree, reasoning that there is no express mention of “gender identity” or “sexual orientation” in the language of Title VII.
Transgender/Gender Identity Discrimination
Transgender individuals have been increasingly successful in bringing claims for gender identity discrimination under the aegis of Title VII. Federal courts have reasoned that by definition, transgender individuals do not conform to sex stereotypes for the sex that they were assigned at birth. A person is transgender because of the perception that his or her conduct transgresses gender stereotypes. However, not all federal courts take this view, and in some jurisdictions, greater protection is found for trans or genderqueer workers under state or local laws.
States that prohibit gender identity discrimination in both public and private sectors include Washington, Vermont, Utah, Rhode Island, New Hampshire, Oregon, New York, New Mexico, New Jersey, Nevada, Minnesota, Massachusetts, Maryland, Maine, Iowa, Illinois, Hawaii, Delaware, Connecticut, Colorado, and California, as well as Washington, DC, Guam, and Puerto Rico. Some cities like New York City expressly prohibit gender identity discrimination.