Sexual orientation discrimination includes being treated differently or harassed because of your real or perceived sexual orientation—whether gay, lesbian, bisexual, or heterosexual. This type of discrimination may be illegal in your workplace, depending on where you work.
Although federal laws protect people from workplace discrimination on the basis of sex, race, national origin, religion, age, and disability, there is no federal law that specifically outlaws workplace discrimination on the basis of sexual orientation in the private sector. (Federal government workers are protected from such discrimination.) In recent years, however, some courts have been willing to extend protection to gay and lesbian employees by holding that they were victims of illegal "sex" discrimination for not living up to gender-based stereotypes. Based on these cases, the Equal Employment Opportunity Commission (EEOC)—the agency that enforces federal antidiscrimination laws—has taken the position that sexual orientation discrimination is necessarily a form of sex discrimination because it involves gender-based stereotypes of how men and women should behave and with whom they should be in romantic relationships. The EEOC is accepting and processing sexual orientation discrimination claims from employees, and in 2016, it filed its first two sexual orientation discrimination lawsuits on behalf of LGBT employees.
Whether sexual orientation is protected under federal law is a complicated and unsettled area of the law, which will ultimately be up to the courts to decide. For now, however, the EEOC is accepting and pursuing sexual orientation discrimination claims.
There is more definitive protection offered at the state level. Almost half the states and the District of Columbia have laws that currently prohibit sexual orientation discrimination in both government and private jobs: 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. In addition, a few states have laws prohibiting sexual orientation discrimination in public workplaces only.
If you are gay or lesbian and your state does not have a law that protects you from workplace discrimination, you may still be protected by city and county ordinances. Many cities and counties prohibit discrimination on the basis of sexual orientation in at least some workplaces.
To find out exactly what kind of protection your city, county, and/or state provides to prohibit sexual orientation discrimination, you can visit the Lambda Legal Defense and Education Fund website at www.lambdalegal.org. Lambda maintains a list of state-by-state antidiscrimination laws, as well as other laws specifically affecting gays and lesbians. If you need additional information, you can contact the Lambda office in your region. There, an intake volunteer will either answer your question or, if you need more help, connect you with a volunteer attorney.
Some enlightened companies have adopted their own policies prohibiting discrimination based on sexual orientation. These policies prohibit such conduct and often provide disciplinary guidelines for dealing managers who discriminate, up to and including termination of employment.
If no law prohibits sexual orientation discrimination where you work, there may still be hope. Depending on the exact nature of the discrimination, you may be able to sue your employer—or your coworkers—under a number of general legal theories, including:
For more information about your right to be free of workplace discrimination, see Your Rights in the Workplace, by Barbara Kate Repa (Nolo)