Sexual Orientation Discrimination in the Workplace
By Susan Buckner, J.D. | Legally reviewed by Laura Temme, Esq. | Last reviewed January 23, 2025
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Sexual orientation and gender identity discrimination involves differential treatment or harassment based on a person’s real or perceived sexual orientation (such as being gay, lesbian, or bisexual) or their gender identity. Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, religion, sex, and national origin, also prohibits this type of discrimination. Various federal, state, and local laws further protect employees from such discrimination.
Regardless of what kind of work you do, there is always the risk of employment discrimination. With so many anti-discrimination laws in place, one would assume this sort of thing no longer happens. Sadly, that isn’t the case.
There are state and federal laws that prohibit workplace discrimination based on a host of factors, including:
- Race
- Age
- Gender
- Disability
- Sexual Orientation
In recent years, lawmakers have also passed laws that protect employees from discrimination on the basis of sexual orientation and gender identity discrimination. This is the result of numerous Supreme Court cases and lawsuits. Of course, even with these newer laws in place, thousands of people still fall victim to workplace discrimination every year.
Here, we’ll explain what sexual orientation discrimination is and how to recognize it. We will also discuss the laws that protect people from this behavior. Finally, we will describe your options if you believe your employer is discriminating against you based on your sexual orientation, gender identity, or other defining characteristics.
What Is Sexual Orientation/Gender Identity Discrimination?
Sexual orientation discrimination occurs when someone engages in harassment or differential treatment based on someone's perceived or actual sexual orientation (including being gay, lesbian, or bisexual).
Gender identity discrimination refers to harassment or differential treatment based on someone's actual or perceived transgender status or gender identity.
This type of behavior violates Title VII of the Civil Rights Act of 1964, a federal law prohibiting employment discrimination based on race, color, religion, sex, and national origin. Additionally, many workplaces have policies and laws against sexual orientation and/or gender identity discrimination.
Differential treatment could include any number of things, such as:
- Supervisors who overlook LGBTQ workers for a promotion because of their sexual orientation
- Managers issuing baseless write-ups or improvement plans to transgender people because of their gender identity
- Wrongfully terminating LGBTQ people because of their sexual orientation or gender identity.
Harassment is not the same thing as differential treatment. Harassment may include the following behaviors:
- Making comments and or engaging in name-calling regarding LGBT people at work
- Speaking negatively about nonbinary coworkers
- Repeatedly asking an employee or coworker out
Whether such behavior amounts to a hostile work environment is a question for a jury. If you feel someone at work is harassing you, document the behavior in writing for future reference.
Federal Law and Discrimination Based on Sexual Orientation
Federal law prohibits workplace discrimination based on one's actual or perceived sexual orientation. This law stems from the U.S. Supreme Court's ruling in Bostock v. Clayton County.
In this case, the U.S. Supreme Court ruled that Title VII of the Civil Rights Act of 1964 also prohibits discrimination based on sexual orientation and gender identity. This Supreme Court decision spawned several new anti-discrimination laws and policies.
These non-discrimination laws protect LGBTQ employees from the following:
- Sexual harassment from coworkers
- Adverse employment action
- A hostile work environment
- Other discriminatory behavior based on sexual orientation or transgender status
In addition to employee rights protection at the federal level, some state human rights laws also protect LGBTQ+ workers by prohibiting discrimination based on sexual orientation and gender identity. Some municipalities, like New York and the District of Columbia, have similar local laws.
Who Enforces the Federal Laws Against Discrimination?
The Equal Employment Opportunity Commission (EEOC) handles complaints involving workplace discrimination. If you believe your employer has subjected you to adverse employment action, a hostile work environment, or other discrimination based on LGBTQ+ status, you start the legal process by filing a charge of discrimination with the EEOC.
The EEOC will investigate your charge and notify you of its findings. Depending on their conclusion, you may decide to sue your employer in federal court.
State Laws Against Discrimination
Lawmakers in many states have enacted anti-discrimination laws to protect LGBTQ rights and prevent mistreatment of transgender people.
Almost half of the U.S. states, including the District of Columbia, have active human rights laws that prohibit LGBTQ+ discrimination. These states include:
- California
- Colorado
- Connecticut
- Delaware
- D.C
- Hawaii
- Illinois
- Iowa
- Maine
- Maryland
- Massachusetts
- Minnesota
- Nevada
- New Hampshire
- New Jersey
- New Mexico
- New York
- Oregon
- Rhode Island
- Vermont
- Virginia
- Washington
Company Policies
Many companies have policies that prohibit sexual orientation discrimination and/or gender identity discrimination.
These policies often include disciplinary steps for managers who engage in sexual orientation discrimination. These steps can involve reversing discriminatory action against the employee and terminating the manager.
Check your company's policies and report any discrimination to Human Resources. Consider consulting an employment lawyer if your HR department does not remedy the issue.
Other Applicable Laws
In addition to violating federal or state law, your employer's behavior may violate other employment rights. If this is the case, you can file a civil lawsuit against them.
Depending on the facts of your case, you may have a cause of action based on the following:
- Negligent or intentional infliction of emotional distress
- Harassment
- Sexual harassment
- Assault
- Battery
- Invasion of Privacy
- Defamation
- Interference with an employment contract
- Wrongful termination
Below are the steps that queer and transgender employees (all LGBTQ+ employees) can take if their employer violates their civil rights or allows other workers to engage in sexual orientation discrimination.
Filing a Claim for LGBTQ+ Discrimination
If you’re a transgender employee or member of the LGBTQ community, you may have a valid claim against your employer.
The following steps will help you file a discrimination claim.
- Collect and preserve evidence of the discriminatory conduct (such as email or phone messages) and compile a list of witnesses.
- Keep copies of favorable employment reviews, congratulatory emails, and related correspondence.
- Review your company's workplace policies and/or your union contract for information about grievance procedures, reporting processes, and contractual rights.
- Report the matter to the appropriate workplace contact. This is usually your Human Resources department.
- You should consider filing a complaint with the Equal Employment Opportunity Commission (EEOC).
How To Prevent Discrimination in the Workplace
The best way to avoid a discrimination lawsuit is to prevent the behavior in the first place.
There are several ways to prevent discrimination in the workplace, including:
- Respect differences in the workplace and promote inclusivity
- Respect the pronouns your coworkers prefer to use
- Remain professional in both conduct and speech
- Never initiate, participate, or condone harassment or discrimination
- Remember that it doesn't matter if the harasser is your opposite sex or same-sex
- When in doubt, leave offensive humor or slurs outside the workplace
- Read the company's workplace policies and act accordingly
- Report incidents to your supervisor, Human Resources department, union, or management
- Be willing to contact the EEOC or your local human rights commission if necessary
Are you concerned about your health or safety at work? Learn how to protect yourself against unsafe working conditions.
Talk to an Attorney Before Filing Your Discrimination Claim
When LGBTQ+ discrimination occurs, it can make you feel powerless. However, you shouldn’t have to deal with people using homophobic slurs or engaging in other discriminatory behavior in the workplace.
An employment lawyer can provide legal advice, help you regain your confidence, and get you the justice and compensation you deserve. Find a local sexual harassment attorney who has experience with such cases today.
Can I Solve This on My Own or Do I Need an Attorney?
- Some employment legal issues can be solved without an attorney
- Complex employment law cases (such as harassment or discrimination) need the help of an attorney to protect your interests
Legal cases for wage and benefit issues, whistleblower actions, or workplace safety can be complicated and slow. An attorney can offer tailored advice and help prevent common mistakes.
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