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.

LGBT Employees Lack Crucial Protections

You may be surprised to learn that LGBT employees lack explicit federal protections against employment discrimination and face higher levels of harassment on the job. In fact, only 20 states plus Washington D.C. have laws that explicitly prohibit employment discrimination based on sexual orientation and gender identity. Click here to see a map of which states have updated their laws to ensure that LGBT are treated fairly at work.

The U.S. Supreme Court may soon hear a case featuring Aimee Stephens, who was fired from her job R&G and G&R Harris Funeral Homes, after coming out as transgender. Last March, the 6th Circuit Court of Appeals ruled in favor of Stephens and the EEOC finding that her firing at work was illegal under Title VII of the federal Civil Rights Act, which prohibits discrimination based on sex at work. The ACLU and the ACLU of Michigan are representing Aimee Stephens in this case.

Last week, MAP and the National LGBTQ Workers Center released a new brief LGBT People in the Workplace which details the history, demographics and experiences of LGBT people in the workplace. Click here to learn more.

Who are LGBT Workers?

This weekend we celebrate Labor Day, the national holiday that commemorates the contributions of workers and the labor movement in the United States. Despite the holiday being more than 120 years old, there is still much to do to ensure that all people’s contributions at work are recognized and honored.

It’s shameful that most women—particularly women of color—still receive grossly unequal pay compared to men. For every $1 a man makes, women make 80 cents, but Black women make 63 cents, Native American women make 58 cents, and Latinas make only 54 cents for every $1 a man makes.

And, it may be shocking to realize that LGBT people go to work every day with few guarantees they will be hired and evaluated based on their contributions and not their sexual orientation or gender identity. What’s worse, most people aren’t aware of such inequalities: according to a 2013 survey, 69% of Americans believed that it was illegal to fire someone in the U.S. for being gay. But in reality, only 20 states and D.C. have laws that explicitly prohibit discrimination based on sexual orientation and gender identity.

Released today, LGBT People in the Workplace: Demographics, Experiences, and Pathways to Equity is an infographic report developed by MAP and the National LGBTQ Workers Center that summarizes the discrimination faced by LGBT people in the workplace. This visual primer explains the patchwork of legal protections available to LGBT people in the U.S., presents the demographic profiles of workers and the severe barriers they confront—in terms of hiring, firing, wages, and benefits—in the midst of an ever-changing economy.

Coauthored with the National LGBTQ Workers Center, this report includes the Center’s grassroots agenda for policy change, which deliberately focuses on LGBT people of color. Centered around worker-led advocacy efforts, the intersectional agenda seeks federal, state and local advocacy in order to create policy change for all LGBT people.

Establishing federal and state level LGBT protections is a pathway towards equality, but grassroots campaigns that are led by workers and prioritize workers’ rights can accelerate policy change. This report emphasizes that the marginalized experiences of transgender workers and workers of color must be prioritized if our goal is to completely eradicate discrimination against all LGBT people in the workplace and beyond.