Sexual Orientation Discrimination
Sexual orientation discrimination in the workplace occurs when an employee is subjected to negative employment action, harassment, or denial of certain benefits because of their sexual orientation, or the sexual orientation of someone they are close to. Sexual orientation discrimination has been part of the workplace in America for decades, and while federal, state and local laws, as well as increased social awareness have improved the situation dramatically, many people who are not heterosexual still face obstacles at work related to being gay, bisexual, asexual, or pansexual. It is important for employees to have the right information about what constitutes discrimination based on sexual orientation, what constitutes harassment, and how sexual orientation discrimination can tie in with other prohibited forms of discrimination like, sex, disability, gender identity, and marital status.
Sexual orientation discrimination can affect your job status, your working environment, your health benefits, and a host of other issues in the workplace. The law in this area is changing rapidly for the better. If you feel you might have been discriminated against because of your sexual orientation, read below for more information and resources about sexual orientation discrimination.
Sexual orientation discrimination means treating someone differently solely because of his or her real or perceived sexual orientation: lesbian, gay (homosexual), bisexual, asexual, pansexual, or straight (heterosexual). This means that discrimination may occur because of others perception of someone’s orientation, whether that perception is correct or not. It may also occur based on an individual’s association with someone of a different sexual orientation. Someone who is discriminated against on the basis of sexual orientation may also be discriminated against or harassed on the basis of sex, gender identity, disability (such as actual or perceived HIV status) or marital status.
Examples of sexual orientation discrimination include:
- Different treatment: you are not hired, not promoted, disciplined, or fired specifically because your boss thinks you are lesbian, gay, bisexual, or straight etc. This goes beyond simply being yelled at for showing up late. Being overlooked for a promotion, wrongful termination, receiving a write-up with no basis, and other serious negative employment actions may qualify as different treatment. Some companies have policies that explicitly discriminate against lesbian, gay and bisexual employees, while in other companies the discrimination is more subtle but no less real. You may find that you start to be treated differently once you come out as homosexual to coworkers or place a photograph of your same-sex partner on your desk. The discrimination may come from just a few people in the company, from your supervisor, or from the company’s CEO.
- Harassment: you are forced to experience comments about your mannerisms or sexual activity, sexual jokes, requests for sexual favors, pressure for dates, touching or grabbing, leering, gestures, hostile comments, pictures or drawings negatively portraying a specific sexual orientation, or sexual assault or rape. Your harasser may be an employer, supervisor, co-worker, or customer, and may be of the opposite or same sex.
- The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
- The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
- Unlawful sexual harassment may occur without economic harm to the victim, such as loss of a job.
- The harasser’s conduct must be unwelcome.
If any of these things have happened to you on the job, you may have suffered sexual orientation discrimination.
In light of the Supreme Court’s recent decision in Obergefell v. Hodges, same-sex couples are guaranteed by the Constitution, the freedom to marry in every state and territory, being afforded the same benefits and protections heterosexuals have always had in marriage. Outside of the newly clarified right to marry, there is currently no federal law prohibiting other types of sexual orientation discrimination. Sexual orientation is not protected by federal law the way race, color, sex, religion, national origin, age, and disability are for private employers. Around two dozen states still don’t have anti-discrimination laws protecting individuals from being discriminated against on the basis of their sexual orientation.
Nonetheless, many companies, workplaces, and legislators are working to change that. While there are efforts underway to pass additional federal laws to make discrimination on the basis of sexual orientation illegal, no bills on this topic have become law yet.
Despite the Supreme Court ruling that LGBT Americans can now legally get married, they are still at risk of being denied services and risk being fired simply for being married. Due to the lack of legal protections, new legislation has been introduced but not passed in Congress. The Equality Act is a comprehensive federal LGBT non-discrimination act that would provide permanent protections for LGBT individuals in the most important aspects of their lives, including but not limited to matters of employment, housing, access to public places, federal funding, credit, education and jury service. In addition, it would prohibit discrimination on the basis of sex in federal funding and access to public places.
Aside from federal legislation, President Obama has also pushed for sexual orientation, and gender identity fairness in the workplace. On July 21, 2014 President Obama signed an Executive Order that amended previous executive orders and added sexual orientation and gender identity protections for all federal workers, including contractors and subcontractors of the Federal government. Previous executive orders only protected workers from workplace discrimination on the basis of race, color, religion, sex, or national origin.
Additionally, many federal government employees are covered by provisions in the Civil Service Reform Act of 1978 which prohibit sexual orientation discrimination. One of these provisions makes it illegal for any employee who has authority to take certain personnel actions from discriminating among employees or job applicants on the basis of conduct that does not adversely affect employee performance. This language has been interpreted to prohibit discrimination based upon sexual orientation.
Currently, 22 states and the District of Columbia, as well as several hundred municipalities (counties and cities) also have laws that prohibit sexual orientation discrimination. 20 of these states prohibit sexual orientation discrimination in both private and government workplaces. This number is constantly changing, so you should also check with an attorney or local gay legal or political organization to see whether any new laws apply to you.
3. Are there any other laws which make it illegal to discriminate on the basis of sexual orientation?
As noted in the last question, many federal employees are covered by anti-discrimination provisions. Since the recent EEOC holding discussed below, these protections are also extended to private employees who file EEOC claims. Similarly, some states, counties and cities, even those without specific laws protecting all employees, have executive orders and/or civil service provisions making discrimination on the basis of sexual orientation illegal for state and/or local governmental employees. In fact, 22 states and the District of Columbia have laws explicitly protecting LGBT workers from being fired because of their sexual orientation. However, this means that there are still 28 states that allow an employee to be terminated on the basis of sexual orientation, and in those states legal remedies are often narrow for private sector employees.
Many union collective bargaining agreements (contracts) include an anti-discrimination provision, which may include sexual orientation. If such a provision is included in your union contract, it gives you a basis to file a grievance if you have been discriminated against because of your sexual orientation. Additionally, many workplaces are implementing their own rules on this issue. In fact, 91 percent of Fortune 500 companies prohibit discrimination based on sexual orientation, and 61 percent prohibit discrimination based on gender identity.
The Equal Employment Opportunity Commission (EEOC) has been helping to pave a legal avenue for those individuals who have been discriminated against in the workplace based on both gender identity and sexual orientation. In July 2015 the Equal Employment Opportunity Commission (EEOC) addressed the question of whether discrimination against LGBT individuals is covered by the ban on sex discrimination in Title VII of the Civil Rights Act of 1964. In a 3-2 vote by the five person independent commission, the EEOC ruled that existing civil rights laws do bar sexual-orientation based employment discrimination. The ruling will apply to federal employees claims as well as any private employee who files a claim with EEOC offices nationwide. The decision says that sexual orientation is inherently a sex-based consideration and the agency will look to whether the agency relied on any sex-based considerations or took gender into account when making the alleged employment action. While this ruling is recent and only the Supreme Court can give a conclusive interpretation, the EEOC ruling is still groundbreaking, and paves the way for further decisions much like this as Federal courts give EEOC decisions significant deference. The Justice Department announced a similar view to the EEOC in December 2014.
The law in this area is constantly changing, with numerous legislative efforts currently in progress around the country to add sexual orientation to state laws, local ordinances, governmental regulations, and corporate policies. You should check with a local attorney, gay and lesbian rights organization, or your corporate human resources department to see whether there have been any recent changes in the law or policies affecting your employment. Even if there is not legal protection affecting your employment, you may be able to encourage your employer to voluntarily cease discriminatory activity and/or to educate others in your workplace to help improve your employment situation.
For more information on which states have anti-discrimination laws see lgbtmap.org.
4. What if I am being harassed by someone of the same sex or because of my sexual orientation, how does harassment relate to sexual orientation discrimination?
Sexual harassment is a form of sex discrimination that is prohibited by federal law and the laws of most states, regardless of whether the state also has a law against discrimination on the basis of sexual orientation. However, many courts have focused on the differences between the two legal concepts to prevent gay and lesbian employees who have been harassed from having the same legal protections available to non-gay employees who have been subjected to similar comments. These courts have ruled that comments focused on the victim’s sexual orientation represent discrimination on that basis, not covered under federal law, instead of sexual harassment, a form of sex discrimination that is covered under federal law. Other courts have ruled that these types of sexual comments, as they relate to gender stereotypes, are a form of illegal sex discrimination under federal law.
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature is considered sexual harassment, when submission to, or rejection of, this conduct affects your employment, unreasonably interferes with your work performance, or creates an intimidating, hostile or offensive work environment. The U.S. Supreme Court has specifically ruled that the victim does not have to be of the opposite sex to be able to bring a legal claim for sexual harassment.
Sexual harassment can occur in a variety of circumstances:
Recently, individuals who were terminated because of their sexual orientation have tried to sue for sex discrimination under Title VII of the Civil Rights Act of 1964. Their argument is that they are being harassed and discriminated against because they do not conform to male and female stereotypes since being gay is not considered stereotypically male or female, and they do not conform to their traditional gender stereotypes. Thus, their termination should be considered unlawful sex discrimination. While this argument has received some recent success, the results have not been consistent overall due to some early court rulings explicitly holding that Title VII does not protect sexual orientation discrimination. However, the EEOC recently issued a decision that sexual orientation is inherently a sex-based consideration, and that existing civil rights laws do bar sexual-orientation based employment discrimination. While only the Supreme Court can provide a conclusive legal interpretation of the existing civil rights laws, Federal courts will give EEOC decisions significant deference, thus paving the road to protection for sexual orientation.
If you are being sexually harassed, you should directly inform the harasser that the conduct is unwelcome and must stop. If you are a union member, it may also be helpful to contact a union civil rights committee for appropriate action. You should use any employer complaint mechanism or grievance system available, as your employer is under a legal obligation to take immediate and appropriate action when an employee complains. For more information, see our page on sexual harassment. If you have been subjected to these types of comments, you may wish to consult with an attorney who specializes in sexual harassment and/or sexual orientation discrimination to determine what laws may offer legal protection in your state.
It depends. Jokes or slurs about your sexual orientation may be considered a form of harassment, which courts have held is a form of discrimination under the law. However, federal law and the laws of most states does not prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious. The conduct must be sufficiently frequent or severe to create a hostile work environment or result in a “tangible employment action,” such as hiring, firing, promotion, or demotion. For more information, see our page on sexual harassment.
You may choose to keep your sexual orientation a purely private matter; nothing requires you to disclose this information to your employer if you do not choose to do so.
However, if you are undergoing discrimination or harassment at work, you may wish to disclose your sexual orientation when speaking with your company’s human resources department and/or a member of management to see whether your employer can work with you to solve the problems you are facing. Otherwise, your company may claim it was unaware of your sexual orientation, and as a result incapable of resolving any discrimination or harassment against you on the basis of your sexual orientation.
Also, as more and more people become aware of their gay co-workers, neighbors, family members, friends, and professionals, withholding basic civil rights protections in employment becomes increasingly difficult for an employer to justify, so you may wish to disclose your sexual orientation to your employer for that reason.
7. Can I be asked not to discuss my sexual orientation or display a picture of my same-sex partner at work?
If you live in a state or city with provisions which make discrimination on the basis of sexual orientation illegal, the answer would generally be no, especially if other employees are allowed to discuss activities with their spouses or opposite-sex partners, or to display pictures of their spouses, opposite-sex partners, or children on their desks.
In the absence of any legal protections, however, private sector employees are employed “at-will,” which means the employer has the right to terminate your employment at any time, for no reason at all or for any reason (including a bad one), so long as the reason is not illegal even if your performance has been outstanding. Therefore, if you disobey your employer’s request, you may find yourself without any legal recourse.
If you find yourself in this situation, you may wish to speak with your company’s human resources department, other supervisors and co-workers, or a local attorney to determine whether you can work with your employer to resolve this issue. Even if there are not legal protections affecting your employment, you may be able to encourage your employer to voluntarily change its discriminatory policies and/or to educate others in your workplace to help improve your employment situation.
Many employers subsidize all or a large portion of health, dental, vision, and other benefits for spouses and families of married employees without giving similar compensation to unmarried and/or childless workers in some other form. Recently the Supreme Court, in Obergefell v. Hodges held that the recognition of same sex marriage is a fundamental right guaranteed by the Constitution. Once married, your spouse and family are entitled to your employee benefits including health insurance. Denying benefits solely because you are married to a person of the same sex violates federal law. Additionally, some states have domestic partnership laws which provide the basis for some companies to provide equivalent benefits to unmarried couples who meet the state’s partnership or civil union requirements.
At the federal level, since the Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA), employers were already required to provide benefits for both opposite sex and same sex married couples and their children. That decision, however, only protected Federal employees, and did not require states to change their own discriminatory laws. Now, under Obergefell employee benefit plans, are required by the Constitution to treat same sex and opposite sex married couples equally.
Prior to the Obergefell decision, many employers, even in states where same sex marriage was illegal, had already extended employee benefits to domestic partners of gay employees since they did not have the option to legally wed. And many employers extended those benefits to opposite sex couples as well. In fact, 66 percent of Fortune 500 companies offered domestic partner benefits to employees prior Obergefell. Since same-sex marriage is now the law and same sex spouses are now afforded the same employee benefits as opposite sex spouses, it is unclear whether those companies will continue offering domestic partner benefits.
Some companies may continue to offer domestic partner benefits. But others, including Verizon, Delta Air Lines, IMB and Corning, have already, or will soon give their employees a time frame to marry or lose their partner’s benefits, thus replacing domestic benefits with spousal coverage. Human rights advocates are encouraging employers to keep domestic partner benefits for everyone. Some groups suggest the best way to handle domestic partnerships is to implement cafeteria-style benefits programs in which all workers, regardless of marital or familial status, receive the same amount of credits to be used for benefits. Giving domestic partner benefits to same-sex and heterosexual unmarried couples also helps eliminate discrimination against unmarried workers who have a partner. Some companies have adopted an “extended family” benefits program to fairly compensate unmarried employees who live with a dependent adult blood relative.
If you feel you have been treated unfairly due to your sexual orientation, or marital or familial status, you may wish to explore with your employer’s personnel or human resources department whether additional options are currently available or under consideration, and discuss with other workers whether they also object to the difference in benefits.
In states where sexual orientation discrimination is explicitly prohibited, if you work for a non-religious employer, your employer may find it difficult to maintain a legitimate business justification for policies or practices which discriminate against employees based on sexual orientation. The personal religious beliefs of a particular supervisor would rarely, if ever, be a legitimate basis for discrimination in this situation, especially if other company employees had been treated differently.
Most employees of religious organizations are also still protected by federal, state and local non-discrimination laws that prohibit discrimination based on sex, sexual orientation or gender identity, although in some states, religious employers, like churches and private religious schools are exempted from anti-discrimination laws. If you work for a religious organization and perform religious duties as part of your job, your employer may not be subject to non-discrimination laws. Some places of worship and religiously-affiliated institutions are entitled to hire employees who share the religious beliefs of the organization.
With respect to sexual orientation discrimination against members of the public, in April 2015, Indiana passed controversial religious freedom legislation prohibiting the passage of any law that would substantially burden a person’s or company’s exercise of their religion. The law would arguably protect business owners who discriminate, on religious grounds, against same-sex couples in providing goods and services. Amid pressure from big businesses including Apple, Angie’s List, and Wal-Mart, lawmakers amended the law to state that businesses cannot use the law as a legal defense for refusing to provide goods, services, facilities, or accommodations on the basis of sexual orientation, gender identity, or any other factors. Governors in both Michigan and North Dakota have urged their legislatures to extend their current anti-discrimination laws to protect LGBT individuals amid the uproar in Indiana and a similar situation in Arkansas.
The law is rapidly changing in this area, and it is not yet clear whether a customer or coworker could use these laws to justify refusing to work with particular employees on the basis of their sexual orientation. Based upon precedents in other areas of discrimination law, an employer typically cannot use customer or coworker preference as a justification for discrimination.
The primary federal law protecting the right to take family or medical leave without losing your job and health insurance benefits, or suffering retaliation is the Family and Medical Leave Act (FMLA), the definition of “spouse” did not historically include an unmarried partner. However, since the Supreme Court’s decision to repeal Section 3 of Defense of Marriage Act (DOMA) and the Supreme Court’s decision in Obergefell v. Hodges and since the Department of Labor issued a regulatory change to the definition of spouse, effective March 27, 2015, eligible employees may use FMLA to take leave to care for a same-sex spouse, or legal common law partner., no matter where they live, even if they reside in a state that does not recognize same-sex marriage so long as the place they entered into the same-sex marriage or common law marriage does. This allows the individual to take unpaid, job-protected, leave to care for their spouse or family member, including step-child or step-parent, even if the employee does not have in loco parentis (day to day responsibilities over the individual or financial support). These changes in DOMA, and in addition to the new same-sex marriage ruling, ensure that the FMLA gives spouses in same sex marriages the same ability as opposite-sex spouses to exercise FMLA rights. However, these changes still do not include Civil Unions or domestic partnerships since civil unions and domestic partnerships are not considered marriages under the FMLA. Under FMLA, if you are also the parent of your partner’s child, through adoption or acting in a parental capacity, you may be able to take FMLA leave to care for you and your partner’s child.
The law in some states may be more protective than federal laws. For example, California law requires that employers offer sick leave to care for domestic partners and/or your partner’s children. Your company’s leave policy, especially if you have domestic partnership benefits and/or a non-discrimination clause which includes sexual orientation, may provide for leave even though it is not required by law. If you need leave for this reason, consult your company handbook or corporate human resources department to determine whether your employer will allow you to take leave.
11. What is the difference between sexual orientation discrimination and gender identity discrimination?
The term “sexual orientation” is generally understood to refer only to whether a person is homosexual (gay), heterosexual (straight), or bisexual, while “gender identity” refers to one’s self-identification as a man or a woman, as opposed to one’s anatomical sex at birth. Not all transgender people are gay. Many transgendered people identify as straight; many transgender women have male partners and many transgender men have female partners. For more information, please see our page on gender identity discrimination>.
While 22 states and the District of Columbia make it illegal to discriminate on the basis of sexual orientation, only nineteen states and D.C. define ‘sexual orientation’ to either include ‘having or being perceived as having a self- image or identity not traditionally associated with one’s biological maleness or femaleness, or specifically make it illegal to discriminate on the basis of gender identity. In other states, where courts have analyzed the state’s sexual orientation anti-discrimination law, courts have been divided: some narrowly interpreting the laws to exclude gender identity, while others interpret the law to provide some protection with respect to gender identity.
Protections under state and local laws are generally enforced by state or local anti-discrimination agencies, which may be called a “fair employment,” “civil rights,” or “human rights” commission or agency. For more information about your state and local agencies, see our page on filing a complaint.
To file a complaint under state and local statutes, please contact your state or local anti-discrimination agency or an attorney in your state. For more information, see our page on filing a complaint.
For remedies available under state and local statutes, please contact your state or local anti-discrimination agency or an attorney in your state. For more information, see our page on filing a complaint.
Because there are many sources of state and local laws relating to discrimination based on sexual orientation, there are too many different deadlines to summarize here. To protect your legal rights, it is always best to contact your state or local governmental agency, or an attorney promptly when discrimination is suspected. For more information, see our page on filing a complaint.
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