Traditionally, gay and lesbian employees have found little in the law to protect them from discrimination and harassment in the workplace. Times are changing, however, and a growing number of employers are finding themselves responsible for providing a workplace that's free of harassment and discrimination based on sexual orientation.
Federal laws. While no federal law prohibits this type of discrimination in private employment, an executive order specifically outlaws discrimination based on sexual orientation in the federal government.
If you are a private employer and you operate your business in a state, county, or city with a law or ordinance prohibiting sexual orientation discrimination, you must follow that law despite the fact that there is no federal law in place.
State laws. Almost half the states and the District of Columbia have laws that currently prohibit sexual orientation discrimination in private employment: California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin. Some of these states also specifically prohibit discrimination based on gender identity. (In addition, a handful of states have laws prohibiting sexual orientation discrimination in public workplaces only.)
Local laws. Locally, many cities and counties nationwide prohibit sexual orientation discrimination in at least some workplaces.
To find out whether your state, county, or city has a law prohibiting discrimination on the basis of sexual orientation, contact your state labor department or your state fair employment office. You can also visit the Lambda Legal Defense and Education Fund website at www.lambdalegal.org, where you will find a state-by-state list of antidiscrimination laws, including city and county ordinances.
Other Legal Theories
Even if there is no law in your state, city, or county prohibiting sexual orientation discrimination, you should tread lightly in this area. A prudent employer won't make decisions based on factors or characteristics unrelated to the job (such as sexual orientation), even if no law explicitly prohibits it.
If you have an employee who feels that he or she has been treated unfairly and/or injured because of his or her sexual orientation, that employee can still sue you under a number of legal theories that have nothing to do with discrimination.
These theories include:
- intentional or negligent infliction of emotional distress
- invasion of privacy
- interference with employment contract, and
- termination in violation of public policy.
For a complete guide to your legal rights and responsibilities as an employer, get The Employer's Legal Handbook: Manage Your Employees & Workplace Effectively, by Fred Steingold (Nolo).