Lesbian, gay, bisexual, transgender, and queer (LGBTQ+) employees are protected from employment discrimination under federal law.
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” In June 2020, the Supreme Court ruled in Bostock v. Clayton County that discrimination based on sexual orientation and transgender status constitute discrimination because of sex under Title VII. Title VII applies to employment agencies, labor organizations, and public and private employers that have 15 or more employees.
For more information about discrimination based on gender identity, see here.
What does this mean?
- Even if your state or locality does not have laws explicitly prohibiting discrimination based on sexual orientation, you cannot be fired, demoted, refused a job or promotion, or otherwise treated worse because of your sexual orientation.
- You have the right to come out at work, if you choose to. Your employer cannot retaliate against you for choosing to come out at work. Likewise, your employer cannot out you at work without your consent.
- You have the right to be treated with respect at work. Harassment based on sexual orientation might look like derogatory comments or jokes about LGBTQ+ people or invasive questioning about your sexual orientation.
If a court finds you have been discriminated or retaliated against in violation of Title VII, you may be entitled to remedies including:
- Reinstatement, compelled hiring, or compelled promotion
- Back pay
- Front pay
- Retroactive seniority and benefits
- Compensatory and punitive damages (punitive damages not available against government employers)
- Attorneys’ fees
Many states and localities also have laws that prohibit discrimination against workers based on their gender identity and/or expression. As of November 2024, 23 states and DC prohibit discrimination based on sexual orientation and gender identity. In nine more states (Alaska, Arizona, Texas, Nebraska, Kansas, North Dakota, Kentucky, Florida, and Pennsylvania) enforcement authorities are accepting complaints on the basis of sexual orientation and gender identity because the state has adopted the Bostock rationale into state law.[1]
In the District of Columbia, the District of Columbia Human Rights Act (DCHRA), makes it unlawful to discriminate based on actual or perceived sexual orientation or gender identity. While federal law only applies to employers with 15 or more employees, the DCHRA applies to all employers. Additionally, the DCHRA protects independent contractors from discrimination.
Under the DCHRA, an employee can file a complaint if an actual discriminatory action occurred in DC, even if the employee does not live and work there.
If you work for a private employer and your employer has discriminated against you because of your sexual orientation, you have one year to file a charge of discrimination with either the D.C. Office of Human Rights or in D.C. Superior Court.
Maryland law also prohibits certain employers from discriminating on the basis of sexual orientation. In Maryland, an employer may not “fail or refuse to hire, discharge, or otherwise discriminate against any individual with respect to the individual’s compensation, terms, conditions, or privileges of employment” because of that individual’s gender identity or sexual orientation. [2] Harassment by a coworker may also violate the law if an employer is aware of and fails to address the harassment.
Virginia law similarly provides protection against workplace discrimination based on one’s sexual orientation. The Virginia Human Rights Act, as amended in 2020, covers sexual orientation. In cases of unlawful termination, the law applies to employers with more than five employees; in cases of other types of discriminatory employment actions, the law covers employers with 15 or more employees.
In New York, the New York State Human Rights Law (“NYSHRL”), as amended by the 2002 Sexual Orientation Non-Discrimination Act (“SONDA”) provides protection against discrimination based on actual or perceived sexual orientation. The NYSHRL applies to all employers in New York, regardless of number of employees. The New York City Human Rights Law (“NYCHRL”) has the same protections.
In California, the Fair Employment and Housing Act (“FEHA”) prohibits an employer from firing, demoting, failing to hire or promote, harassing, or otherwise discriminating against an employee based on their “actual or perceived” sexual orientation. Discrimination protections apply under FEHA to all employers with five or more employees. Provisions against harassment apply to all employers, regardless of the number of employees.
How do I vindicate my rights?
Non-Federal Employees:
You must file a charge with the EEOC in order to seek a legal remedy for sex discrimination or retaliation that violated Title VII. You must file your charge within 180 days from the date of the alleged violation in order to protect your ability to vindicate your rights under Title VII. 42 U.S.C. § 2000e-5(e)(1). If you live in a state that has a state law prohibiting sex discrimination, however, this 180-day filing deadline is extended to 300 days or 30 days after you have received notice of termination of state proceedings if that date is earlier, because you are required to file a charge with the appropriate agency in your state. Id.
The EEOC or your state or local agency will investigate your charge of discrimination, and if it determines your charge has merit, it will attempt to foster conciliation between you and the employer. However, most EEOC field offices do not have the capacity to act on most complaints in a timely manner. Regardless of the EEOC’s determination, you may bring a civil action in court after 90 days have passed since you filed your charge by requesting a “right-to-sue” letter from the EEOC. See 29 C.F.R. § 1601.28(e).
Federal Employees:
If you are a federal employee, you must first initiate a complaint by contacting your employing agency’s EEO counselor within 45 days of the alleged violation. If the complaint cannot be resolved informally, you must file a formal written complaint with the agency that discriminated against you within 15 days of the notice of the EEO counselor’s failure to resolve the matter. 29 C.F.R. §§ 1614.105(a)(1), .106(b). The agency investigation must be completed within 180 days of the date the complaint or its last amendment was filed, or within 360 days of the date the original complaint was filed, whichever is earlier. 29 C.F.R. §1614.108. A court action must be filed within 90 days of receipt of notice of final action on the formal written complaint. 42 U.S.C. §2000e-16(c).
If you have or are currently experiencing harassment based on your sexual orientation, the lawyers at Katz Banks Kumin can help you to find a fair and just resolution with your employer. Contact us confidentially today.
[1] https://www.hrc.org/resources/state-maps
[2] Md. Code, State Gov’t § 20-606