Despite all the progress made in advancing equal rights for LGBTQ people in the past decade, the community still experiences adversity and hardship in many areas of life, with employment being one of the most problematic areas.
According to a 2017 study by the Robert Wood Johnson Foundation, 20% of LGBTQ Americans have experienced discrimination due to their sexual orientation or gender identity when applying for a job, while 22% say they have not received equal pay or have been passed up for promotions more frequently compared to straight employees. LGBTQ people of color have it even worse: 32% of them have experienced discrimination during the job application process. These statistics indicate just how rampant discrimination is in the American workplace.
Although the struggle is ongoing, progress in enacting anti-discrimination policy for LGBTQ people has been made, even if the situation is not the same for every American. In this article, we’ll look at the status of LGBTQ rights in the American workplace, answer some common questions on the topic, and provide resources to help you join in the campaign for equality. Until everyone–regardless of race, sexual orientation, gender identity, or sex–has equal employment opportunity, the work is never finished.
The struggle for federal LGBTQ anti-discrimination legislation – An overview
The battle to enact federal anti-discrimination protections for LGBTQ individuals in the workplace has raged for the past 50 years. While many states and counties have laws in place that prohibit employment discrimination on the basis of sexual orientation and identity, there is no federal statute that directly addresses LGBTQ discrimination in the workplace, despite many attempts to pass such legislation.
For years, in order to make up for the lack of official federal statues on LGBTQ employment discrimination, the Equal Employment Opportunity Commission (EEOC) has interpreted Title VII of the Civil Rights Act of 1964 as covering discrimination against LGBTQ employees since the law prohibits discrimination on “the basis of sex”.
The following is a timeline of recent rulings where the EEOC has followed this interpretation:
- 2012 – The EEOC rules that Title VII of the Civil Rights Act of 1964 bars employment discrimination based on gender identity.
- This ruling stemmed from a complaint filed by a transgender woman named Mia Macy who was denied a job as a ballistics technician with the Alcohol, Tobacco, Firearms, and Explosives (ATF), a federal agency. When Macy applied for the job, she was still a male and was told she had the job. However, when she later transitioned to a woman and disclosed her gender, she was told the job was cut due to lack of funding, yet later learned that someone else had been given the position (source).
- 2014 – A U.S. District Court Judge rules that an individual can sue for discrimination under Title VII of the Civil Rights Act of 1964, which bans sex discrimination, in the case of TerVeer vs. Billington.
- The plaintiff claimed that his employer, a librarian for the Library of Congress, created a hostile work environment, denied him a pay raise, and ultimately discharged him due to his sexual orientation (source).
- 2015 – The EEOC rules that Title VII prohibits discrimination on the basis of sexual orientation since it qualifies as a form of sex discrimination.
- The ruling was based on a complaint from an anonymous employee working at the Miami International Airport who claimed that he was denied a promotion and suffered verbal abuse from his superior because of his sexuality (source).
- 2018 – The Sixth Circuit Court of Appeals rules that federal discrimination laws (Title VII of the Civil Rights Act of 1964) protect transgender people from employment discrimination.
- The ruling resulted from a case in which Aimee Stephens, a transgender woman, was fired when she revealed her gender to her employer, R.G. and G.R. Harris Funeral Homes, where she worked as a funeral director for six years. After the ruling, 16 states joined an amicus brief urging the U.S. Supreme Court to reconsider the decision. The Supreme Court agreed and will hear the case in the 2019-2020 term (source).
While all of these recent rulings should be considered wins in the fight for LGBTQ employment discrimination laws, they are not necessarily binding and could be overturned in further court cases. This is due to the fact that they are based on interpretations of the Civil Rights Act of 1964, rather than federal legislation directly addressing LGBTQ employment discrimination.
Presidential administrations, including those of Bill Clinton and Barack Obama, have attempted to enact anti-discrimination policy through executive orders, however, these acts are not as solid as passing actual laws: the Trump administration notoriously overturned an Obama policy using Title VII to protect transgender workers from workplace discrimination.
It remains the case that the most steadfast legal protections afforded to LGBTQ individuals are provided through laws put in place by individual states and localities, rather than at the federal level.
LGBTQ workplace discrimination protections: How does your state fare?
Ever since 1975, when Pennsylvania became the first U.S. state to ban employment discrimination based on sexual orientation in the public sector, other states have followed suit with similar laws. Other landmark firsts include Wisconsin banning employment discrimination based on sexual orientation in both the private and public sectors in 1982, and Minnesota banning employment discrimination based on both sexual orientation and gender identity in 1993.
To date, 38 states, the District of Columbia, over 400 localities, and the U.S. territories of Guam and Puerto Rico have banned employment discrimination based on sexual orientation and/or gender identity on some level. However, these state laws vary in their level of protection, with some states only enforcing bans on public sector employment discrimination, and others not banning discrimination based on gender identity.
That leaves 12 states lacking any type of LGBTQ employment discrimination protections, whatsoever, however individual counties and cities in these states have passed their own anti-discrimination laws.
In order to inform you about the LGBTQ employment discrimination laws in effect in your state, we’ve graded all 50 states based on their level of anti-discrimination protections and sorted them into five groups.
“Group 1” states offer the most wide-reaching protections, while “Group 5” states having no statewide protections for LGBTQ individuals in the workplace. Between these two extremes, it’s a sliding scale: groups 2 through 4 have some protections in place but are lacking in certain areas.
How each state came to prohibit certain forms of discrimination varies: many passed specific non-discrimination laws, while others like Wisconsin, Indiana, and Florida acquired protections through other means such as federal court rulings, decisions of local civil rights commissions, and executive orders.
States ranked by level of LGBTQ discrimination protections
Group 1 states: Sexual orientation and gender identity discrimination prohibited in both the public and private sectors
- 23 states have the highest level of LGBTQ employment discrimination protections in place, banning discrimination against sexual orientation and gender identity in public and private employment. These states are California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Michigan, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, and Washington.
- The District of Columbia, as well as the U.S. territories of Guam and Puerto Rico, has similar laws in place.
Group 2 states: Sexual orientation and gender identity discrimination prohibited in the public sector; either sexual orientation or gender identity discrimination prohibited in the private sector
- Four states prohibit discrimination based on gender identity and sexual orientation in public sector employment while missing the mark in the private sector on some level.
- Wisconsin and Indiana bar sexual orientation discrimination in the private sector, yet have no protections in place against gender identity discrimination in private employment.
- For Ohio and Kentucky, the situation is the opposite. These two states prohibit employment discrimination based on gender identity in the private sector but offer no protections for sexual orientation in the private sector.
Group 3 states: Sexual orientation and gender identity discrimination prohibited in the public sector OR gender identity discrimination prohibited in the public and private sectors
- Eight states have some level of protection against LGBTQ discrimination in the workplace but are sorely lacking in other areas.
- Montana, Kansas, Virginia and North Carolina are four states that prohibit employment discrimination based on sexual orientation and gender identity in the public sector, yet afford no protections for LGBTQ individuals in the private sector.
- Based on rulings in the Appeals Courts in the Sixth and Eleventh sectors that found discrimination based on gender identity unlawful due to an interpretation of the Civil Rights Act of 1964, Tennessee, Alabama, Georgia, and Florida technically prohibit discrimination based on gender identity in the public and private sectors.
- However, these protections should not be considered as strong as in states where anti-discriminatory laws have been passed. These states do not have laws in place that protect against discrimination based on sexual orientation in the public or private sectors.
Group 4 states: Sexual orientation discrimination prohibited in the public sector
- Alaska, Missouri, and Arizona prohibit employment discrimination based on sexual orientation in the public sector, but do not protect against it in the private sector, and offer no protections against employment discrimination based on gender identity.
Group 5: No LGBTQ employment discrimination protections
- 12 states fare the poorest, with no statewide LGBTQ protections to speak of. They are Idaho, Wyoming, North Dakota, South Dakota, Nebraska, Oklahoma, Texas, Arkansas, Louisiana, Mississippi, West Virginia, and South Carolina.
- These states need to pass LGBTQ employment discrimination protections soon, or they will further alienate their residents. However, some cities and localities in these states do have their own protections in place.
Frequently asked questions
Which countries have laws in place prohibiting employment discrimination based on sexual orientation or gender identity?
In many ways, the United States is behind the curve in terms of civil rights and laws protecting its citizens from discrimination. As of 2019, 74 countries have passed federal laws banning employment discrimination on the basis of sexual orientation, including our neighbors Canada and Mexico, as well as many European nations like the UK, France, and Germany (source).
Europe is the most progressive continent in terms of discrimination protections, with 44 nations on the continent having federal laws against the practice. Asia and Africa lag behind: less than 20% of the nations in each continent protect against LGBTQ discrimination in the workplace.
What can I do if I am the victim of discrimination at my job?
If you are the victim of discrimination due to your sexual orientation or gender identity at your workplace, or as a job applicant, don’t worry: there are ways to fight back.
Your first move should be to file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC). The agency takes the stance that LGBTQ employment discrimination violates the Civil Rights Act of 1964 and has frequently campaigned successfully for discrimination victims across the country, often winning damages on their behalf.
You can also contact your local American Civil Liberties Union (ACLU) branch for consultation and possible legal representation against employers or other organizations that have discriminated against you.
Do public schools protect against LGBTQ discrimination?
According to the ACLU, students at American public schools have the right to express who they are and wear clothing consistent with their gender identity. Schools also have a responsibility to engender a safe learning environment for students, free of harassment or threatening behavior. Additionally, a school is obligated to keep a transgender student’s status confidential, and a failure to do so could constitute a violation of federal law.
Unfortunately, depending on where you live around the country, schools enforce these policies to varying degrees. If you or someone you know is the victim of harassment or discrimination due to sexual orientation or gender identity at school, contact the ACLU and explain the situation.
Is it common for companies to have their own anti-discrimination policies?
Despite the federal government’s inertia in drafting LGBTQ employment discrimination laws, more and more companies have their own anti-discrimination policies in place. In fact, as of last year, 93% of Fortune 500 companies have policies that prohibit discrimination based on sexual orientation, while 85% ban gender identity discrimination (source). While any number lower than 100% is insufficient, the business world has taken great strides towards creating discrimination-free workplace environments.
If you are currently hunting for a job, you may consider visiting the website of the company you are interested in or contacting a representative to see if it includes sexual orientation and/or gender identity in its non-discrimination policies.
How can I help in the campaign for LGBTQ rights?
Interested in helping fight for LGBTQ equality in the workplace and other areas of life? There’s plenty that you can do, regardless of your sexual orientation or gender identity.
To begin, visit the website of the Human Rights Campaign, the largest LGBTQ civil rights organization in the nation, with over 3 million members and supporters around the country. There, you can donate to the organization, sign up for their email newsletter, and search upcoming LGBTQ events in your area.
- American Civil Liberties Union (ACLU) – Since its founding in 1920, the ACLU has been working to protect the civil liberties of Americans of all stripes, including LGBTQ individuals. The organization has active branches in all fifty states, as well as the District of Columbia and Puerto Rico.
- Equal Employment Opportunity Commission (EEOC) – The federal agency tasked with enforcing federal anti-discrimination laws in the area of employment. Headquartered in D.C., the EEOC also has 53 field offices around the country. If you’ve become the victim of discrimination by an employer, you can file a charge through their site.
- Human Rights Campaign (HRC) – The largest LGBTQ civil rights organization in the United States.
- Lambda Legal – A nonprofit organization working “to achieve full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and everyone living with HIV through litigation, education and public policy work.”
- National LGBTQ Task Force – A thriving organization campaigning for the rights of LGBTQ individuals.
- Parents, Families, and Friends of Lesbians and Gays (PFLAG) – An inclusive organization for LGBTQ people, their families, and allies. PFLAG boasts over 400 chapters around the country.
- The Williams Institute – A think tank affiliated with the UCLA School of Law strenuously devoted to high-quality research on gender identity and sexual orientation.
Hopefully, this article has educated you on the anti-discrimination laws in your area and convinced you of the importance of continuing the campaign for LGBTQ equality and acceptance. As our nation is based on the principles of liberty and equality, the difficulty that LGBTQ people continue to face in the workplace and when applying for jobs every day is a glaring injustice.
Regardless of whether you are an LGBTQ person, a family member, or an ally, we urge you to advocate for the rights of everyone and don’t hesitate to act if you are witness to discriminatory practices at your job or any area of life. It takes courage and selflessness to enact lasting change.