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SEXUAL ORIENTATION AND
GENDER IDENTITY DISCRIMINATION
Unlike age, disability, gender, national origin, pregnancy, race, and religion, there is no federal law against sexual orientation discrimination. Whether existing prohibitions against gender discrimination cover gender identity is a matter of some dispute.
State and Local Laws
Sixteen states and Washington, D.C. prohibit sexual orientation discrimination. Hundreds of cities, counties, and other local governments also prohibit sexual orientation discrimination. These laws vary from local laws that impose a small fine for discrimination to state laws granting compensatory, punitive, and other damages. Some state and local laws also prohibit discrimination on the basis of gender identity/expression, familial status, or off-work conduct.
State laws also vary regarding the enforcement of company non-discrimination policies and general unfair treatment.
Because state and local vary dramatically, it is important to talk to an experienced employment lawyer regarding your matter.
Federal Employees and Government Employees
In the federal government the Civil Service Reform Act of 1978 (CSRA), as amended, prohibits federal employees who have authority to take, direct others to take, recommend or approve any personnel action from discriminating against applicants and employees on the bases of race, color, sex, religion, national origin, age, disability, marital status or political affiliation and from discriminating against an applicant or employee on the basis of conduct which does not adversely affect the performance of the applicant or employee. The Office of Personnel Management (OPM) has interpreted the prohibition of discrimination based on "conduct" to include discrimination based on sexual orientation.
Furthermore, Executive Order 13087, amending Executive Order 11478, was signed on May 28, 1998, to provide a uniform policy for the federal government to prohibit discrimination based on sexual orientation. Executive Order 11478 section 1 reads:
It is the policy of the government of the United States to provide equal opportunity in federal employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, national origin, handicap, age, or sexual orientation and to promote the full realization of equal employment opportunity through a continuing affirmative program in each executive department and agency. This policy of equal opportunity applies to and must be an integral part of every aspect of personnel policy and practice in the employment, development, advancement, and treatment of civilian employees of the federal government, to the extent permitted by law.
Beyond the federal government, employees of state and local governments and agencies may have additional workplace protection against sexual orientation discrimination. Government employees in particular should contact an experienced employment lawyer if they believe they have suffered sexual orientation discrimination.
Sexual Orientation Plus
Even where there is no protection for gays, lesbians, bisexual, and transgendered individuals explicitly set forth in the law, discrimination may be unlawful where the discrimination overlaps with a protected class. For instance, a workplace that discriminates against a gay man for being too effeminate or a lesbian for being too masculine would commit gender discrimination. A workplace that does not tolerate homosexuals because of religion would similarly commit religious discrimination.
Robert J. Wiley is the attorney responsible for this website.
Robert J. Wiley is licensed to practice law in California, Texas, and Washington, D.C.
Robert J. Wiley is a Texas Board of Legal Specialization Board Certified Specialist in Labor and Employment Law.
The firm is headquartered in Dallas, Texas.
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.