Wrongfully Terminated Due to Sexual Orientation or Gender Identity

Learn your rights against workplace discrimination based on sexual orientation and gender identity.

If you’ve been fired from your job based on your sexual orientation, gender identity, or gender expression, you may have grounds for a wrongful termination lawsuit. A number of states prohibit job discrimination based on sexual orientation or gender identity. LGBT employees may also be protected under federal law. Below, we explain these protections, along with steps to take if you believe you were discriminated against.

Laws Prohibiting Sexual Orientation and Gender Identity Discrimination

Title VII of the Civil Rights Act of 1964 is the primary law that prohibits workplace discrimination, including sex discrimination. In addition, many states have passed laws explicitly prohibiting discrimination on the basis of gender identity and sexual orientation.

Title VII’s Prohibition on Sex Discrimination

Title VII has long prohibited sex discrimination on the job. Until recently, Title VII has been interpreted to prohibit gender discrimination, but not discrimination based on sexual orientation. In the past few years, however, this interpretation has changed. Today, the Equal Employment Opportunity Commission (EEOC)—the agency that enforces federal laws banning workplace discrimination—takes the position that gender identity discrimination and sexual orientation discrimination are forms of illegal sex discrimination, because they are based on gender stereotypes.

The Supreme Court paved the way for this interpretation 25 years ago, when it found that an employer engaged in illegal sex discrimination by holding a female employee to workplace standards based on gender stereotypes. InPrice Waterhouse v. Hopkins, a woman sued the famous accounting firm after she was denied partnership. (Price Waterhouse, 490 U.S. 288 (1989).) Among other things, Hopkins was told that she was too aggressive; needed to speak, act, and dress in a more feminine manner; and needed "a course in charm school." Hopkins successfully argued that these statements were a form of illegal sex discrimination, because she was being penalized for not living up to her employer’s notions of how women should act.

In the last few years, the EEOC and federal courts have started to extend Title VII protections to transgender employees who are fired because of their perceived failure to conform to the gender they were assigned at birth. For example, an employee who is transitioning from male to female may experience gender-based discrimination for dressing like a woman rather than a man, acting in a more masculine way, wanting to use the women’s restroom, or taking on a more feminine name. Although federal courts are not consistent on this issue (and many continue to rule against transgender employees), a growing number have found that discrimination against transgender employees is a form of sex discrimination, illegal under Title VII.

The EEOC has recently taken the position that all discrimination based on sexual orientation is also a form of illegal sex discrimination. In some cases, an employee is fired, disciplined, or otherwise treated differently for acting in a more feminine or masculine manner than the employer finds acceptable (for example, a gay employee is discriminated against for being too “effeminate”). In other cases, the gender stereotype is that men should only date, be attracted to, or marry women (and vice-versa). For example, a homosexual employee is discriminated against for dating, being married to, or taking the last name of, a same-sex partner.

Because Title VII does not explicitly include sexual orientation or gender identity as protected categories, and because these interpretations and cases are relatively new, you should absolutely speak to a local employment lawyer to find out whether you have a strong claim of illegal discrimination.

State and Local Laws Prohibiting Discrimination

A number of states—currently, about 20—prohibit workplace discrimination based on sexual orientation. Several also prohibit discrimination based on gender identity and/or gender expression. More states are considering these laws all the time; to find out where your state stands, select it from the interactive map at the website of the Human Rights Campaign.

In addition, many cities or counties ban discrimination on the basis of sexual orientation, gender identity, and/or gender expression. Some of the first laws in our country protecting LGBT employees were passed at the local level, in communities with significant numbers of gay constituents. To find out whether your city or county has this type of law, check the website of your local legislature. (You can find an expansive list of links by state at www.statelocalgov.net.)

What to Do If You Were Fired Based on Your Sexual Orientation or Gender Identity

If you believe you lost your job because of your sexual orientation, because you are transgender, or because you do not conform to gender-based stereotypes, you may have a claim against your employer for wrongful termination.

Meet With a Lawyer

As noted above, whether you are protected depends partly on your state and local law, and on how federal courts in your area have interpreted Title VII’s ban on sex discrimination. Because of the geographical variation in protections, it is vitally important that you consult with an experienced employment lawyer. (You can start your search at Nolo’s Lawyer Directory.)

A lawyer can review the facts of your case, explain your legal protections under federal, state, and local law, and evaluate your chances of succeeding in court. A lawyer can try to settle your claims with your employer, help you file an administrative charge of discrimination, and, if necessary, represent you in a lawsuit. (See What to Expect From Your Employment Discrimination Lawyer to learn more about how a lawyer can help you assert your rights.)

If you’re concerned about how you will pay a lawyer, you’ll be happy to learn that many lawyers take discrimination cases on a contingency fee basis. This means the lawyer will take a percentage of any money you receive from your former employer through a settlement or award. If you win at trial, your award may also include payment for your attorneys’ fees. (To find out more about how lawyers are paid, see How Much Does an Employment Discrimination Lawyer Charge?)

File a Charge of Discrimination

If you plan to file a Title VII lawsuit, you must first file a charge of discrimination with the EEOC. If your state has a law prohibiting sexual orientation or gender identity discrimination, you may also be required to file a discrimination claim with the state’s fair employment practices agency. Depending on your claims and your state’s law, you may have as few as 180 days to file this charge. (For more information, see Filing an EEOC Charge of Discrimination.)

If you want to proceed straight to court, you can ask the EEOC or your state agency to issue you a right-to-sue letter: a document that states you have met the requirement of filing a discrimination charge. But make sure you are ready to file your lawsuit before requesting the letter. Once the agency issues a letter, you will have only 90 days to file a federal lawsuit. (However, you may have longer under state law.)

Damages Available for Sexual Orientation Discrimination

If you win your lawsuit, you can ask the court to award you money damages to compensate you for the harm you have suffered. You can also ask the court to return you to your old job; however, this remedy— called “reinstatement”—is rare, simply because the employment relationship is often damaged beyond repair at that point.

Among the money damages you can request are:

  • back pay: lost wages and benefits you didn’t receive because you were fired
  • out-of-pocket costs: expenses you had to pay because you were fired, such as costs associated with your job search
  • front pay: money to compensate you for the wages you will continue to lose in the future (if you haven’t found a new job, despite your reasonable efforts)
  • emotional distress damages: money to compensate you for the mental pain and suffering caused by the termination
  • punitive damages: a monetary award intended to punish your employer for especially egregious violations of the law, and
  • attorneys’ fees and court costs.

If you sue under Title VII, you may recover all of the money you lost in back pay, front pay, and attorney fees. However, the total amount you can be awarded for emotional distress damages, punitive damages, and out-of-pocket costs, combined, is capped. The maximum ranges from $50,000 to $300,000, depending on the size of your employer.

Some states also cap certain types of damages awards or otherwise limit them. (For example, some states don’t allow a court or jury to award punitive damages for employment discrimination.) Other states do not. Your lawyer can explain these rules and help you decide whether state law, federal law, or both provide the best avenue for relief in your case.

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