How Does Your State Fare in Workplace Protections?

January 31, 2017
Joseph E. Abboud

Many employees facing workplace discrimination find vital protection under federal statutes that prohibit discrimination on the grounds of race, national origin, religion, age, disability, pregnancy, and other characteristics.  These laws, including the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the American with Disabilities Act, the Pregnancy Discrimination Act, and the Genetic Information Nondiscrimination Act, play an important role in promoting fairness in the American workplace by protecting employees from bias and retaliation.

While these statutes cover millions of workers who fit within certain categories, federal law does not address various forms of discrimination that many individuals continue to face in employment.  To address these gaps, some states and local municipalities have stepped in to establish anti-discrimination statutes for their residents who are otherwise without protection.  Three areas of concern that have warranted legislation in recent years are discrimination on the basis of sexual orientation or gender identity, retaliation against employees who discuss their wages openly, and accommodations for pregnant employees and the provision of paid family leave.  States vary widely in their approach to expanding these discrimination protections, leaving employees throughout the country subject to significantly different workplace standards.

States with the Broadest Employee Protections

California, New Jersey, New York, Rhode Island, and the District of Columbia are at the forefront anti-discrimination protections, prohibiting discrimination on the basis of sexual orientation and gender identity and prohibiting retaliation against employees who discuss their wages openly. These five jurisdictions also have laws that give employees rights to both paid family leave and reasonable accommodations for pregnancy. While several other states have made significant progress in some of these areas, these five jurisdictions currently have the most expansive anti-discrimination protections in the nation.

States with the Fewest Employee Protections

On the opposite end of the spectrum, 15 states do not prohibit discrimination on the basis of sexual orientation or gender identity, do not protect workers who discuss wages, and do not provide paid family leave and pregnancy accommodations.  In these states, employees have little recourse for these forms of discrimination, which fall outside federal law.  These states include: Alabama, Arkansas, Florida, Georgia, Idaho, Kansas, Michigan, Mississippi, Missouri, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, and Wyoming.

In some states, statutes grant limited anti-discrimination safeguards that apply only to public employees.  Private sector employees, who make up the majority of the workforce, are excluded from these important protections.  States that provide anti-discrimination coverage to public employees alone include: Arizona, Indiana, Kentucky, Montana, North Carolina, Pennsylvania, Texas, and Virginia.

Remaining Gaps

Many employees are surprised to find that federal and state laws do not prohibit their employers from taking actions that constitute discrimination, such as firing someone who is homosexual or banning employees from discussing their pay to determine whether women are making less than their male colleagues.  While there is a general trend towards broader anti-discrimination laws, with a handful of states taking the lead, a majority of states have yet to enact protections on the three issues discussed above.

Twenty six states have no prohibition against employment discrimination based on sexual orientation or gender identity (and only seven of these states provide such protections for public employees).  This leaves many American workers with no legal recourse when they suffer retaliation, demotion, or even termination due to their sexual or gender identity.  States that fail to provide specific protections on these grounds leave their residents vulnerable to bias that has long been recognized as unjust and unwise in other contexts.

An even greater share of states, 35 in total, allow employers to prohibit workers from discussing their wages with co-workers.  While federal law (and some state laws) prohibit unequal pay and pregnancy discrimination, employees are often unable to discover sex-based discrimination without learning salary information from their peers.  Sharing wage information can also help expose unequal pay on the basis of other unlawful grounds, such as race or age.  Permitting workers to share pay information is therefore a crucial aspect of addressing discrimination more widely.

With regards to pregnancy discrimination, 33 states do not require private employers to provide reasonable accommodations to pregnant employees, making it more difficult for these workers to maintain their income and professional development during pregnancy.  Protections for family leave are even more limited, with only five states and the District of Columbia establishing a legal right to guaranteed paid family leave so that employees can care for newborn children or ill family members.

While some states have taken a leading role in developing more inclusive, expansive employee protections, it is clear that much remains to be done.  Regardless of where they reside, workers deserve equal access to employment, fair conditions in the workplace, and protection from discriminatory retaliation.  Robust state laws can go a long way to securing these equal employment opportunities, and can provide important coverage where federal discrimination law falls short.

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