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 by private employers. (Federal government workers are protected from such discrimination.)
However, in October of 2019, the U.S. Supreme Court heard oral arguments in a pair of consolidated cases involving LGBT discrimination in the workplace. In the first case, Bostock v. Clayton County, Georgia, a man alleged he was fired from his position as a child welfare services coordinator because he was gay. The Eleventh Circuit Court of Appeals dismissed Bostock's case, citing its precedent in another case which held that the sex discrimination ban in Title VII of the Civil Rights Act doesn’t cover sexual orientation discrimination.
In the companion case, Altitude Express, Inc. v. Zarda, the plaintiff, a sky diving instructor, told a female customer he was gay to try to put her at ease before they strapped themselves together for the skydive. The woman's boyfriend complained that this made her feel uncomfortable, and Zarda was fired.
The U.S. Court of Appeals for the Second Circuit ruled that this conduct was discrimination based on sexual orientation, which violated Title VII’s ban on sex discrimination.
The Supreme Court is expected to issue a decision in the summer of 2020.
Prior to these cases coming before the Court, the federal Equal Employment Opportunity Commission (EEOC)—the agency that enforces federal antidiscrimination laws—has taken the position that sexual orientation discrimination is unlawful sex discrimination under Title VII. The U.S. Department of Justice has taken the opposite stance. And federal courts have been split on the issue, with resolution coming soon from the nation's highest court.
There is more definitive protection offered at the state level. More than 20 states and the District of Columbia have laws that expressly prohibit sexual orientation discrimination in private jobs. For a list of states, see the Movement Advancement Project's equality map.
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 gay and lesbian individuals. 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).