When Can You Sue a Business for Discrimination Based on Sexual Orientation or Gender Identity?

Defining Discrimination

Sexual orientation is your identity in relation to the gender or genders to which you're sexually attracted. Sexual orientation discrimination occurs, then, when you're treated differently from others based solely on your real or perceived sexual orientation.

Gender identity, or gender expression, is the gender with which you identify. This can be different from the gender you were assigned at birth. Gender identity discrimination occurs when you're treated unfairly because of your gender identity.

Scenarios Involving Discrimination Against Consumers

Below are just a few hypothetical scenarios that suggest you might be experiencing gender identity or sexual orientation discrimination:

• You're a male-presenting person and you're refused service at a restaurant after your server notices that you're wearing pink nail polish.
• You're a lesbian who's shopping while wearing a suit and tie and a store associate approaches you and says "we don't want people like you in our store."
• You're a transgender woman attempting to use the women's restroom at a gas station and the gas station attendant asks to see identification proving your gender before allowing you access to the restroom.
• You're a transgender woman at a fitness facility who is not permitted to use locker rooms that correspond with your gender.

Is There Protection for Consumers Under Federal Law?

Unfortunately, and to the surprise of many, there aren't any existing federal laws that directly protect LGBTQ+ patrons or consumers in the above scenarios. There are federal laws that prohibit businesses from refusing service on the basis of race, color, religion, disability, or national origin. There are also federal laws that protect members of the LGBTQ+ community from employment discrimination. None of these laws, however, provide protection in other contexts.

There's a bill known as The Customer Non-Discrimination Act that, if passed into law, would offer greater protections and prohibit discrimination based on gender identity and sexual orientation in public spaces. The bill would prohibit discrimination in public accommodations as well as retail stores and banks, among others.

In the meantime, your legal recourse for discrimination based on gender identity or sexual orientation depends on your state's laws.

Is There Protection for Consumers Under State or Local Laws?

The good news is that some states have LGBTQ+-inclusive non-discrimination laws and regulations that cover public accommodations. Unfortunately, only slightly less than half of states, as well as the District of Columbia, offer such protections.

If you happen to live in a state that has laws or regulations prohibiting discrimination on the basis of sexual orientation or gender identity in public spaces, your best course of action is to reach out to an LGBTQ+-friendly attorney who can evaluate your case and provide you with options. Keep in mind, though, that many non-discrimination laws only provide injunctive relief. That means a business might be stopped from engaging in discriminatory practices in the future, but you won't necessarily be awarded any money for the discrimination you experienced.

Some cities, such as New York, have human rights statutes that prohibit discrimination against LGBTQ+ people. These cities are few and far between, however.

If you don't live in a state or city with LGBTQ+-inclusive non-discrimination laws, you don't really have any legal options. However, that doesn't mean you can't effect change!

Non-Legal Options for Consumers

If you don't live in a state that prohibits sexual orientation or gender identity discrimination in private businesses operating in public spaces, or if you simply don't want to deal with the legal system, that doesn't mean you don't have any options.

If you're outraged by potentially discriminatory treatment you've been subjected to as a patron of a business, you can raise the issue with the manager or owner of the business. If your complaint isn't taken seriously, you can take steps to raise awareness around your experience. Sometimes a social media post or article in your local newspaper is all it takes to effect change. Most business owners don't want negative publicity and will take corrective action to avoid the potential loss of customers.

If you're more interested in creating change across the board, you can run for local office. You don't have to have a background in politics or law to run for office, and you might be surprised by how much of a difference your voice makes in establishing policies and laws that are more inclusive of the LGBTQ+ community.

Workplace Discrimination Based on LGBTQ+ Status

Federal anti-discrimination laws protect gay, lesbian, bisexual, and transgender people from discriminatory employment decisions. In Bostock v. Clayton County, the U.S. Supreme Court ruled that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 barred private employers from discriminating against employees not only on the basis of sex, but also on the basis of an employee's sexual orientation and gender identity.

Under the Supreme Court decision, the federal government protects transgender people from workplace discrimination. Federal rights do not depend on heterosexuality. Employers are responsible for providing fair employment terms to job applicants and employees, and generally to prohibit hostile work environments.

What To Do If You Have Been Discriminated Against in the Workplace Due to Your LGBTQ+ Status

Perhaps your employer refuses to address you by your pronouns and expects you to abide by a company dress code that bars you from dressing in accordance with your gender identity. Perhaps you are subjected to sexual harassment by a supervisor. You don't have to tolerate this.

If you believe you have been discriminated against in the workplace based on your LGBTQ+ status, your first step is to file a charge of discrimination with the U.S. Equal Opportunity Employment Commission. That's EEOC Form 5.

The Equal Opportunity Employment Commission (EEOC) is the federal agency responsible for handling workplace discrimination claims. The EEOC will investigate your complaint of discrimination and notify you of their conclusions within 180 days. If the EEOC chooses not to sue on your behalf, you can then bring a lawsuit against your employer under Title VII in the federal courts.

Want More Information?

If you have specific questions about whether you've experienced actionable sexual orientation or gender identity discrimination as a patron of a business or in the workplace, reach out to a local attorney to get legal advice about your case.