Sexual Orientation Discrimination in Employment

Federal laws now prevent business owners from discriminating against lesbian, gay, bisexual, or transgender employees. But, there is only so much the law can do. Laws can demand equal pay, equal hours, and equal opportunity for promotion, but it's up to employers to make sure it happens. LGBT workers have to depend on state and local laws to pick up the slack with employers.

Legal action is the last step in a process that begins with a hostile work environment. What can employers do to stop this process before it starts and create a welcoming workplace for all their employees?

A Brief History of Sexual Orientation Discrimination

Title VII of the Civil Rights Act of 1964 banned employment discrimination based on race, color, religion, sex, and national origin. The Civil Rights Act does not explicitly address discrimination on the basis of sexual orientation or gender identity. The EEOC's official position is that Title VII does ban gender identity discrimination.

In 2012, the EEOC issued a non-binding memorandum stating that Title VII protects sexual orientation. In 2014, then-Attorney General Eric Holder issued a memorandum affirming that the U.S. Department of Justice broadly agreed with the EEOC's position. But, in 2017, then-Attorney General Jeff Sessions withdrew the Holder memo. Since the federal government was silent, things were in stasis until 2020.

In June 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County, Georgia. Two employees lost their jobs in part because they were gay, and a third worker got fired when she transitioned from male to female. The Court held that Title VII's prohibition on sex discrimination included gender discrimination and gender identity discrimination.

What This Means for Employers

The Supreme Court decision in Bostock means all private employers with more than 15 employees cannot discriminate against applicants or employees based on sexual orientation or gender identity. This prohibition 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.

Small business owners want employees who work well together. Angry or unhappy workers are not good for the business and won't treat your customers well. Hostile work environments tend to become hostile for everyone, not just the targeted worker. EEOC investigations and lawsuits are embarrassing and expensive. If you take a proactive stance toward sexual orientation discrimination, you can have a happier and legally safe workplace.

Steps To Protect Your Business

Some things are legally required, and some are common sense and basic decency. Preventing workplace discrimination requires both. Nondiscrimination laws are the first step to ensure a friendly workplace for all workers and customers.

Educate Yourself

Media, websites, and other employers toss around terminology without always being accurate. Using the wrong phrase for an employee's sexual orientation can be a form of discrimination.

• LGBTQIA+ — "lesbian, gay, bi, trans, queer/questioning, intersex, asexual, plus." Shorthand for the entire LGBTQ community.
• Gay — a man who has emotional, physical, or romantic attraction to other men.
• Lesbian — a woman who has emotional, physical, or romantic attraction to other women.
• Bisexual — someone who has emotional, physical, or romantic attraction to both or multiple sexes.
• Queer — a term used within the LGBTQ community. Nobody outside the community should use this term.
• Cis/Cisgender — someone whose gender identity/expression is the same as the one assigned at birth. A cisgender person can be straight or gay.
• Trans/Transgender — someone whose gender identity/expression differs from the one assigned at birth. A transgender person can be straight or gay.
• +/Plus — all other gender orientations that don't fit into current concepts.

Adapted from "What is LGBTQIA+?" The Center

Educate Your Employees

The best way to prevent discrimination is to have a good policy defining prohibited behavior and laying out clear guidelines for reporting and discipline. Sample policies are available online through human resources websites.

You may want to frame your training in a way that takes personal opinion out of the workplace. For instance, "Whatever your opinion on same-sex couples, you cannot harass gay workers on the job."

Practice Open Communications

Employees should feel comfortable coming to you or human resources with all concerns. It may be a transitioning worker who wants co-workers to use their preferred pronouns or an employee who doesn't understand why they must share an office with those so-and-sos.

Handling complaints is important. So is addressing issues before they become harassment and complaints.

Request Employee Feedback

If you're having difficulties, never be afraid to ask your workers what they think will work. For instance, if bathrooms are an issue, ask what alternatives people prefer. Having these discussions early and often can head off serious problems later. The bottom line is that all workers must cooperate and compromise to have a functioning workplace.

When In Doubt, Call an Expert

Federal and state laws are constantly changing around LGBTQ rights, and not always for the better. In 2022, a Texas federal court vacated the EEOC's guidance on Bostock, holding that Bostock only applied to discrimination against gay and transgender status. In this ruling, Bostock does not prohibit any other discriminatory behavior, such as requiring transitioning individuals to dress according to their birth gender.

The EEOC has not appealed this ruling as of this date (2023). Because of this, LGBT employees have fewer protections in Texas than in other states.

Small business owners who need legal advice should consult an employment law attorney in their state who can explain the state of LGBTQ employment regulations. It is also wise to talk to a human resources authority that specializes in LGBT personnel management issues.