Does the Law Protect Me Against Discrimination in Employment Based on My LGBTQ Status?

If you work in New York State, New York City, or New Jersey, the answer is yes.  But this is not true everywhere—a point discussed below.

The protections offered in New York State, New York City, and New Jersey specifically protect LGBTQ individuals.  The New York State Human Rights Law protects employees from discrimination based on sex or sexual orientation and from harassment based on sex, sexual orientation, or gender identity or expression.  Likewise, the New York City Human Rights Law (“NYCHRL”) forbids employment discrimination based on gender and sexual orientation.   The NYCHRL specifically defines “gender” to include, “actual or perceived sex, gender identity and gender expression, including a person’s actual or perceived gender-related self-image, appearance, behavior, expression or other gender-related characteristic, regardless of the sex assigned to that person at birth.”[1]  The New Jersey Law Against Discrimination similarly shields LGBTQ employees from discrimination based on gender identity or expression.

What Does “Not Everywhere” Mean?

Twenty-one states, two U.S. territories, and the District of Columbia have specific laws that prohibit discrimination based on sexual orientation and gender identity.  Separately, one more state protects based on sexual orientation only.[2]  In addition, there are two other states (Pennsylvania and Michigan) that interpret existing statutory references to discrimination based on “sex” to include such protections.[3]  This means that twenty-six (26) states offer no specific, state law protections to LGBTQ persons.

Where Does That Leave The Remaining Twenty-Six States?

The current answer: in limbo.  The Equal Employment Opportunity Commission (the “EEOC”), which enforces Title VII (the law that prohibits discrimination in employment throughout the United States) interprets Title VII’s prohibition on employment discrimination based on “sex” to also “forbid[]any employment discrimination based on gender identity or sexual orientation.  These protections apply regardless of any contrary state or local laws.”[4]  By its own description, though Title VII “does not explicitly include sexual orientation or gender identity in its list of protected bases, the [EEOC], consistent with Supreme Court case law holding that employment actions motivated by gender stereotyping are unlawful sex discrimination and other court decisions, interprets the statute's sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.”[5]   This approach relies on Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) in which the Supreme Court recognized that employment discrimination based on sex stereotypes about gender specific dress and behavior to be unlawful discrimination.  There have been a number of relevant decisions since that time,[6] but, to this law firm, straightforward application of the meaning of unlawful discrimination in employment based on sex resolves the issue and unquestionably protects LGBTQ persons.

Does Everyone Agree With You That Existing Legal Protections Against Discrimination Based on “Sex” Extend to LGBTQ Individuals?

Unfortunately, the answer to this question remains “no.”  Despite the EEOC taking a protective position and Title VII’s status as a nationwide law, not all federal courts enforcing Title VII have clearly expressed this position.  Moreover, Title VII only applies to employers with fifteen (15) or more employees.  This combination of factors leaves many employees unprotected, especially in the many states with no relevant state statute.  This situation is all-the-more-complicated by what we believe to be the Trump administration’s wrongful position against the EEOC.  The depth of this fracture is demonstrated by Trump’s Department of Justice filing a brief contrary to the EEOC in a case to be argued before the Supreme Court in October 2019, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, 18-107.[7]

If you would like to discuss your situation with us, please feel free to call or email us at any time. You will be on the phone with an attorney within 24 hours.

 


[1] New York City Administrative Code, § 8-102.

[2] https://www.lgbtmap.org/equality-maps/non_discrimination_laws

[3] Id.

[4] https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers (emphasis in original).

[5] Id.

[6] https://www.eeoc.gov/eeoc/newsroom/wysk/lgbt_examples_decisions.cfm

[7] https://news.bloomberglaw.com/daily-labor-report/transgender-bias-at-work-not-banned-by-law-doj-tells-justices