Sexual Orientation Discrimination: Your Rights

Many state and local laws protect gay and lesbian workers from discrimination in the workplace.

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.

Federal Law

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, over the years, there has been more legal support for finding that Title VII's prohibition against "sex" discrimination also covers sexual orientation discrimination. The reasoning is that sexual orientation discrimination necessarily involves gender-based stereotypes of how men and women should behave and with whom they should be in romantic relationships.

The Equal Employment Opportunity Commission (EEOC)—the agency that enforces federal antidiscrimination laws—has taken the position that sexual orientation discrimination is illegal under Title VII. Two federal appeals courts have agreed, while one federal appeals court has disagreed. This is an unsettled area of law, which can only be resolved by the U.S. Supreme Court (or by new legislation from Congress). For now, however, the EEOC is accepting and pursuing sexual orientation discrimination claims.

State Laws

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.

Local Laws

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.

Company Policies

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.

Other Laws

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:

  • intentional or negligent infliction of emotional distress
  • harassment
  • assault
  • battery
  • invasion of privacy
  • defamation
  • interference with an employment contract, and
  • wrongful termination.

For more information about your right to be free of workplace discrimination, see Your Rights in the Workplace, by Barbara Kate Repa (Nolo).

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