Are LGBT Workers Protected from Discrimination? It’s Complicated

For many people, it it’s shocking to learn that nearly half of LGBT adults live in states lacking laws explicitly prohibiting discrimination at work based on sexual orientation and/or gender identity. Further, most people believe that there is a federal law explicitly prohibiting anti-LGBT discrimination. (Hint: there’s not).

Last week, the ACLU filed a response before the U.S. Supreme Court in a case in which Aimee Stephens, a transgender woman, was fired when she came out to her employer and informed them that she planned to start dressing in appropriate business attire for a woman.

Today, MAP, the ACLU and Lambda Legal released a new report that outlines the complicated patchwork of employment nondiscrimination protections for LGBT people. Are LGBT Workers Protected from Discrimination? Unravelling the Patchwork of Federal, State, and Local Employment Protections examines federal, state and local laws and court rulings that offer protections to LGBT workers and highlights the gaps that leave LGBT workers vulnerable to discrimination because laws don’t explicitly include the terms “sexual orientation” or “gender identity,” and courts have not interpreted sex discrimination provisions correctly.

  • Federal protections: A growing number of federal courts and the Equal Employment Opportunity Commission (EEOC) have concluded that when a person is discriminated against because of their sexual orientation or gender identity, such discrimination is inherently differential treatment based on the individual’s sex and illegal under federal laws’ prohibitions on sex discrimination.
  • State laws: Only 20 states and the District of Columbia have state statutes that explicitly prohibit discrimination in employment based on sexual orientation and gender identity, while two states have statutes that explicitly prohibit discrimination based on sexual orientation but not gender identity.
  • Local progress: Because of a lack of progress at the federal and state levels, some cities and counties are acting to protect their residents. Since the first local nondiscrimination ordinance was passed in 1974, hundreds of cities and counties have passed local nondiscrimination ordinances to protect LGBT workers from discrimination. These local ordinances currently provide important job safeguards for thousands of LGBT individuals living in states lacking explicit state-level protections.

There is broad public support for employment protections and yet, many Americans assume incorrectly that these laws already exist protecting LGBT workers from discrimination in the workplace. In 2018, 71% of Americans said they support laws that protect LGBT people from discrimination, including majority support in every state across the country.

That’s why efforts like Yes on 3 in Massachusetts and the successful New Hampshire campaign to pass HB 1319 are so critical. It’s time to update our nondiscrimination laws, so that everyone can have a fair shot to earn a living and provide for their family.