Discrimination in the workplace on the basis of sexual orientation, both actual and perceived, is unlawful under federal law and many state and local laws—but it hasn't always been this way.
In June 2020, a landmark decision by the U.S. Supreme Court held that the federal prohibition on discrimination “on the basis of sex” includes discrimination based on sexual orientation and gender identity.
The Court's ruling immediately prohibited sexual orientation discrimination nationwide, but only for employers with 15 or more employees. Employees of smaller employers must turn to state or local laws for relief.
Sexual orientation discrimination happens when an employer makes an employment decision based solely or primarily on a person’s actual or perceived sexual orientation. This can take many forms, such as refusing to hire job applicants who are gay or lesbian, keeping gay or lesbian employees from interacting with clients or customers, or demoting or firing an employee who comes out as gay or lesbian.
Harassment on the basis of sexual orientation is also a form of unlawful discrimination. This includes unwelcome behavior that is so pervasive or severe that it interferes with someone’s ability to do their job and creates a hostile work environment. An office culture that routinely features “jokes” about an employee’s sexual orientation, for example, can rise to the level of a hostile work environment, especially when management is aware of the issue but fails to take any action.
Discriminatory conduct is unlawful when it targets any sexual orientation—straight, gay, lesbian, bisexual, or otherwise. That means a business with a predominantly LGBTQ customer base cannot refuse to hire someone because they are not gay or lesbian.
Title VII of the Civil Rights Act of 1964 prohibits discrimination “on the basis of sex.” On June 15, 2020, the Supreme Court ruled in Bostock v. Clayton County, Georgia that this prohibition includes both sexual orientation and gender identity (590 U.S. ___ ).
The Court consolidated three related cases. Two of them, originating in the Second and Eleventh Circuit Courts of Appeals, involved gay men who alleged that their employers fired them after learning of their sexual orientation. The Second Circuit ruled in the employee's favor, while the Eleventh Circuit found for the employer.
The third case came from the Sixth Circuit. It involved a transgender woman who claimed that her employer fired her when she informed them that she intended to transition from male to female. The court ruled for the employee.
This created a split among the federal appellate courts on the question of sexual orientation discrimination under Title VII. The Eleventh Circuit had ruled twice that Title VII’s provisions regarding sex discrimination did not include sexual orientation. The Second and Seventh Circuits had reached the opposite conclusion. The Supreme Court agreed to hear appeals from the Second and Eleventh Circuit cases, and added the Sixth Circuit case on gender identity discrimination.
Justice Gorsuch, writing for the majority, applied textual analysis to Title VII. He concluded that discrimination based on sexual orientation or gender identity is, in fact, discrimination on the basis of sex. “An employer who fired an individual for being homosexual or transgender,” he wrote, “fires that person for traits or actions it would not have questioned in members of a different sex.” In other words, the employers fired the plaintiffs because they are men who are attracted to other men, but they wouldn't have fired a woman for being attracted to men.
Prior to the Bostock decision, federal law did not have wide-ranging protections against sexual orientation discrimination. The Equal Employment Opportunity Commission (EEOC), which investigates alleged Title VII violations, took the position that discrimination “on the basis of sex” included sexual orientation and gender identity years before Bostock, but its opinion carried little legal weight outside of its own proceedings.
Executive Order (EO) 11478 prohibited employment discrimination for many civilian employees of the federal government. President Nixon issued the order in 1969. At that time, it covered the same grounds as Title VII: race, color, sex, religion, and national origin. In 1998, President Clinton signed EO 13087 adding sexual orientation to the list of protected categories for civilian federal government employees. EO 13672, signed by President Obama in 2014, added gender identity, and also barred federal contractors from discrimination in hiring decisions on the basis of both sexual orientation and gender identity.
Many states, counties, and cities have enacted laws prohibiting sexual orientation discrimination. Some states’ laws only apply to public employers, while others include both public and private employers. The first state to prohibit sexual orientation discrimination was Pennsylvania, which enacted a law in 1975 that applied to public sector employers. State-level agencies with functions similar to those of the EEOC are available to assist with potential claims.
As of mid-2020, only a handful of states have no protections against sexual orientation discrimination in any sector of employment. In states without such laws, some cities or counties might have them.
While Bostock resolved the the legal status of sexual orientation discrimination, it left some questions unanswered. In the underlying Sixth Circuit case involving gender identity discrimination, R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, the district court ruled against the plaintiff on two grounds. First, it held that gender identity was not protected under Title VII. Second, it found that the employer’s “sincerely held religious beliefs” regarding gender and gender expression entitled it to an exemption from Title VII under the Religious Freedom Restoration Act (RFRA). The district court cited the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby Stores, Inc. in support of this finding (573 U.S. 682).
The Sixth Circuit reversed both of the district court’s findings. With regard to the RFRA claim, it held that the employer failed to show that Title VII had burdened the owner’s religious freedom. The employer did not appeal this issue to the Supreme Court. The question of whether “sincerely held religious beliefs” and sexual orientation or gender identity could supersede Title VII’s protections therefore remains unresolved at the national level.
If you believe you have experienced unlawful discrimination by an employer based on sexual orientation, you should contact an employment lawyer with knowledge of the laws in your area.