Sexual Orientation Discrimination in Employment

Historically, persons identifying as lesbian, gay, bisexual, transgender, or queer (LGBTQ) did not enjoy legal protection from discrimination in employment. With the passage of Title VII of the Civil Rights Act of 1964, that slowly began to change. Now, members of the LGBTQ community are protected from employment discrimination on the basis of sexual orientation and gender identity under Title VII and many state laws and city ordinances.

Read on for a discussion of developments in this area of the law.

Brief History of Sexual Orientation Discrimination

Title VII of the Civil Rights Act of 1964, passed by Congress and signed by President Lyndon Johnson that year, broadly prohibited discrimination in employment on the basis of race, color, religion, sex, and national origin. While the prohibition against sex discrimination arguably could have been read to prohibit discrimination on the basis of sexual orientation and gender identity, it was not originally interpreted in that manner. Instead, it was understood to prohibit discrimination based on a person's biological status as a male or female.

In the void left by this legislation on the federal level, states and cities began to adopt prohibitions against discrimination in employment on the basis of sexual orientation and gender identity. As might be expected, these state constitutional amendments, state statutes, city ordinances, and court decisions varied greatly. Many states and cities adopted no prohibitions at all. No national standard arose out of this process.

In 1998, President Bill Clinton issued an executive order that prohibited discrimination in the federal civilian workforce on the basis of sexual orientation. In 2014, President Barack Obama issued an executive order adding gender identity to that prohibition, and also prohibited discrimination by federal contractors and subcontractors on the basis of sexual orientation and gender identity. These actions did not extend to other employers and employees, however.

Bostock v. Clayton County and Its Implications

In 2020, in Bostock v. Clayton County, the U.S. Supreme Court ruled that Title VII's prohibition against sex discrimination in employment extends to discrimination on the basis of sexual orientation and gender identity. This ruling extended protections to gay and transgender individuals across America. In so deciding, the Court resolved a conflict that had developed in the lower courts.

Following Bostock, employers covered by Title VII may not discriminate against applicants or employees on the basis of sexual orientation or gender identity. This prohibition presumably applies to all employment decisions, including hiring, job assignments, pay, fringe benefits, training, reviews, promotions, demotions, transfers, layoffs, firing, or any other conditions of employment.

Applicants and employees are also afforded protection against quid pro quo or hostile environment harassment on the basis of sexual orientation or gender identity.

Protections By Private Employers

Even after Bostock, not all employers and employees are covered by federal, state, or city laws against sexual orientation or gender identity discrimination. Nevertheless, some employers may grant protections to members of the LGBTQ community, even if they are not required to do so by existing laws. You should check your company's internal discrimination policies if you believe you have been discriminated against. The human resources (HR) department should make this information available to you. For more resources, visit FindLaw's section on Employment Discrimination.

Sexual Orientation Discrimination in the Workplace: Related Resources

• Filing Discrimination Charges with the EEOC
• Gender Discrimination: U.S. Supreme Court Cases
• LGBTQ Rights and Gender Identity Discrimination

Next Steps: Talk to a Qualified Attorney

Do you feel that you have been denied a job or mistreated on the job because of your sexual orientation or gender identity? If so, you may want to obtain advice on how best to proceed. Talk to a qualified employment discrimination lawyer today.