Discrimination Workplace Discrimination: Gay, Lesbian & Transgender Rights

  1. Federal, state and local laws and procedures are in place to protect people - gay, lesbian and straight - against discrimination in the workplace based upon sexual orientation.

    What is Sexual Orientation Discrimination?

    Being harassed or treated differently at work because of your actual or apparent sexual preference and/or mannerisms is known as sexual orientation discrimination. It does not matter whether you are actually lesbian, gay, bisexual or even heterosexual, only that some type of discriminatory conduct occurred due to your apparent sexual preference. Employees may say that your appearance suggests that you are homosexual when you are not, e.g. a woman who has a short pixie or “butch” haircut, a man who has effeminate traits, etc. In the same way that a homosexual person may experience discrimination at a job where the employees are predominantly heterosexual, a heterosexual person may also experience the same wrongful discrimination at a job where the majority of employees are homosexual.

    Federal Law

    While federal law exists which protects all workers from being discriminated on the basis of nationality, gender, age, disability and race, there is not one in place which will specifically protect sexual orientation discrimination in private sectors. Only workers in the Federal Government are specifically protected from this type of discrimination. While there have been several attempts to introduce federal law protecting private sector workers from sexual orientation discrimination, these efforts have been unsuccessful. However, there are increasing numbers of members of Congress who are supporting such a bill every year so it is likely that we will see federal law covering sexual orientation discrimination.

    State Law

    More protection against sexual orientation discrimination exists on the state level. Nearly half of all states in the U.S. and in the District of Columbia have state laws in place which prevent both private sector and public sector workers from discrimination based on their sexual orientation. Protection covers both gay and lesbian workers (homosexual rights) and straight workers (heterosexual rights.) The states that have enacted these laws include the following: Wisconsin, Washington, Vermont, Rhode Island, Oregon, New York, New Mexico, New, Jersey, New Hampshire, Nevada, Minnesota, Massachusetts, Maryland, Maine, Iowa, Illinois, Hawaii, Connecticut, Colorado and California. There are also a number of states which have laws against sexual orientation discrimination but only for public sector workers.

    Local Law

    Even if there may be no state law that specifically protects you from discrimination based on sexual orientation, you may be protected by your local city or county ordinances. In fact, more than 185 counties and cities prohibit sexual orientation discrimination in some or all work places.

    Legal Resources

    An organization that deals specifically with sexual orientation matters is the Lambda Legal Defense and Education Fund site. Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work.

    Protection Against Discrimination Based on Gender Identity: Transgender Rights

    There are some states which also protect workers from discrimination on the basis of gender identity (LGBT) - which is a person’s self identified gender as opposed to their actual gender at birth. This frequently concerns transgender issues (men wanting to be or becoming women and vice versa.) States that have actual measures in place against gender identity discrimination include the District of Columbia, Vermont, Rhode Island, Oregon, New Mexico, New Jersey, Minnesota, Maine, Iowa, Illinois, Hawaii, Colorado and California. While others states may not have actual statutes for gender identity discrimination, some courts have included this type of protection under other anti-discrimination statutes such as the ones which protect workers from being discriminated against based on gender.

    Company Policies

    It is quite common that companies and corporations have anti-discrimination policies based on a person’s sexual orientation. There are usually disciplinary procedures in place for those who are guilty of this type of discrimination. These disciplinary procedures will usually include severe measures against significant discrimination such as termination of the guilty employee’s employment.

    Other Laws

    Even if there are no laws protecting you from sexual orientation discrimination in the place where you work, do not despair. There are legal theories and causes of action which you may be able to use in order to sue a co-worker or employer for sexual orientation discrimination such as:
    • Infliction of emotional distress either intentionally or negligently
    • Assault
    • Harassment
    • Invasion of privacy
    • Battery
    • Defamation
    • Wrongful termination or
    • Interference with a contract of employment
    Making such a case for a lawsuit usually requires legal experience. If you need more assistance, you should have a consultation with a reputable employment lawyer who specializes in discrimination in the workplace.
    Employment & Labor:
    Discrimination, Employment, Workplace

    Michael Wechsler

    Michael Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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