This type of discrimination is illegal in public and private workplaces in the United States as a result of a 2020 Supreme Court decision, Bostock v. Clayton County, Georgia. That decision also outlawed workplace discrimination on the basis of gender identity.
An employer discriminates based on sexual orientation when it considers an employee’s sexual orientation in making employment decisions. For example, it is discriminatory for an employer to refuse to hire gay or lesbian employees, fire a gay employee for marrying his same-sex partner, or segregate openly gay employees from positions that require customer contact.
It would also be discriminatory for an employer to take action against heterosexual employees because of their sexual orientation. A bar or restaurant that serves a largely gay clientele could not refuse to hire straight employees as bartenders or waiters, for instance.
Workplace harassment is a form of discrimination. Harassment is offensive and unwelcome conduct based on a protected trait, and it comes in two forms:
In June 2020, the U.S. Supreme Court issued an historic decision for LGBTQ rights in Bostock v. Clayton County, Georgia (590 U.S. ____). The Supreme Court held by a 6-3 margin that workplace discrimination based on sexual orientation or transgender status violates Title VII of the Civil Rights Act of 1964, which prohibits sex-based discrimination.
The case involved three individuals who alleged they were fired because they were gay or transgender. Writing for the majority, Justice Neal Gorsuch argued that "it is impossible to discriminate against a person for being homosexual or transgender without discriminating
against that individual based on sex." He wrote:
An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
Justice Gorsuch conceded that the drafters of Title VII might not have anticipated the ban on sex discrimination applying to sexual orientation or gender identity. Nevertheless, he wrote that "the limits of the drafters' imagination supply no reason to ignore the law's demands."
The landmark decision means that public and private employers nationwide are prohibited from firing or otherwise discriminating against workers on the basis of sexual orientation or gender identity in every aspect of employment—including hiring, training, promotion, compensation, discipline, and termination.
Harassment on the basis of sexual orientation and gender identity is also prohibited. As mentioned above, harassment is any conduct motivated by a protected category (such as sexual orientation) that creates an intimidating, hostile, or offensive work environment. Harassing conduct might include homophobic slurs or jokes, or physical acts—for example, posting an offensive picture in an employee's workspace.
To qualify as unlawful harassment, the conduct must be unwelcome and sufficiently severe or pervasive to change the workplace environment. If the conduct is particularly egregious, a single incident might be enough to constitute harassment, but in most cases a pattern of behavior is required.
Prior to the Bostock decision in June 2020, about half the states had already outlawed workplace discrimination based on sexual orientation or gender identity.
The federal Equal Employment Opportunity Commission (EEOC)—the agency that enforces federal antidiscrimination laws—had taken the position that sexual orientation discrimination was unlawful sex discrimination under Title VII. Meanwhile, the U.S. Department of Justice had taken the opposite stance. And federal courts were split on the issue, which is why the case ended up at the nation's highest court.
If you believe you are being discriminated against because of your sexual orientation, your first step should be to talk to an experienced employment lawyer. A lawyer can tell you whether you have a strong legal claim against your employer and help you come up with the best strategy to protect yourself.
Don’t delay: If you decide to take legal action against your employer, you will likely have to first file a charge of discrimination with the EEOC or your state fair employment practices agency. This is a prerequisite to filing a lawsuit under Title VII; many states have the same requirement. The deadlines can be tight for filing a charge: You may have as few as 180 days after the discrimination or harassment took place. A lawyer can help you sort through the facts, decide how to proceed, and present your case in the strongest light.
]]>The federal civil rights protections in the Affordable Care Act (Section 1557) guard LGBTQ people from discrimination based on sex in any program or facility that gets federal funding for health care services, including Medicare. And many—but not all—states have antidiscrimination laws that protect LGBTQ people from being unfairly treated in public places, including doctors’ offices and hospitals.
Prior to the passage of the Affordable Care Act (ACA) in 2010, no federal law prohibited sex discrimination in health care. Now, Section 1557, the antidiscrimination section of the ACA, bars discrimination based on race, color, national origin, sex, age, or disability in all health care programs or activities that receive federal funding. (42 U.S. Code § 18116 (2022).)
The Obama administration interpreted Section 1557’s ban on sex discrimination to include discrimination based on gender identity. The Trump administration briefly reversed that reading of the law until it was restored by the Biden administration in 2021.
Section 1557 applies to:
For example, Section 1557 applies to hospitals that accept Medicare, doctors who receive Medicaid payments, and federal programs like Head Start.
Federal antidiscrimation protections have increased LGBTQ access to health care and services in many ways, including:
Some states have antidiscrimination laws that prohibit discrimination in “public accommodations.” Public accommodation laws typically protect LGBTQ people and others in places like stores, restaurants, hospitals, and doctors’ offices—anywhere other than home, work, or school.
As of 2022, over 20 states have public accommodation laws explicitly barring discrimination based on sexual orientation and gender identity. An equal number of states have no laws barring LGBTQ discrimination in public accommodations. The remaining states prohibit sexual orientation discrimination only or interpret existing prohibitions on sex discrimination to include discrimination based on sexual orientation and gender identity.
State laws and policies on private insurance, Medicaid, and state employee benefits also vary widely. Some states—like California and New York—protect LGBTQ people from being unfairly denied health insurance coverage or being unfairly excluded from coverage for certain health care procedures on the basis of sexual orientation or gender identity. Other states—like Arkansas—explicitly permit insurers to refuse to cover gender-affirming care.
An emerging hot-button issue in 2022 is gender-affirming medical care for transgender youth. As of March 2022, over a dozen states have restricted access to gender-affirming care or are currently considering laws that would do so. Many of the laws carry criminal penalties for health care providers, and sometimes families, who provide or seek gender-affirming care for minors.
Historically, medical professionals have contributed to bias against LGBTQ people. But the American Medical Association (AMA) is now working to expand access to medical services, reduce stigma in treating LGBTQ patients, and break down discriminatory barriers to health care.
The AMA Code says: "Physicians who offer their services to the public may not decline to accept patients because of race, color, religion, national origin, sexual orientation, gender identity or any other basis that would constitute invidious discrimination."
In fact, the AMA has adopted dozens of rules and opinions calling for the equal treatment of gay, lesbian, bisexual, and transgender patients, doctors, and medical students. The AMA supports access to gender-affirming care and the end of discredited practices like so-called “conversion therapy.”
A few states have laws that allow businesses and government officials to deny services, including health care (except in emergency situations), to LGBTQ people if doing so would conflict with sincerely held religious beliefs. For example, a doctor in these states may refuse to provide fertility treatments to same-sex couples, hormone-replacement therapy for transgender people, or counseling for bisexual people.
Religious exemptions (sometimes called conscious clauses) are not new in medicine. Almost immediately after Roe v. Wade legalized pre-viability abortions nationwide in 1973, Congress passed a law clarifying that health care providers, hospitals, and clinics that receive federal funding don’t have to provide abortions or sterilizations if they have religious objections to the procedures. A number of states have abortion-related conscious clauses too.
But LGBTQ-related religious exemptions for health care providers might conflict with Section 1557 of the ACA, which applies to nearly every hospital, insurer, and private practice in the country. So, an LGBTQ person who lives in a state with a broad conscious clause, may be able to file a federal lawsuit against a doctor who refuses to provide gender-affirming care or fertility treatments based on that person’s sex, sexual orientation, or gender identity.
If you believe a doctor or employee has refused to treat you because of your sex, sexual orientation, or gender identity, you can do any of the following:
You can also file a civil rights complaint with the HSS Office of Civil Rights (OCR). The OCR will investigate your complaint and potentially get the program or provider to change its discriminatory practices.
If you would like to file a civil lawsuit, talk to a lawyer. You can typically file a lawsuit instead of or in addition to filing a complaint. Learn more about hiring and working with a lawyer. You can also connect with a lawyer directly from this page.
Lambda is a national legal organization whose mission is to protect the civil rights of LGBTQ people. Lambda’s Legal Help Desk provides information and resources relating to discrimination based on sexual orientation, gender identity, gender expression, and HIV status.
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