Your Rights Against Discrimination Based on Sexual Orientation

Many state and local measures protect gay and lesbian workers from discrimination in the workplace.

Sexual orientation discrimination includes being treated differently or harassed because of your real or perceived sexual orientation -- whether gay, lesbian, bisexual, or straight (heterosexual). This type of discrimination may actually be legal in your workplace, depending on where your work is located.

Although a broad umbrella of federal laws protects people from workplace discrimination on the basis of race, national origin, sex, age, and disability, those facing discrimination based on sexual orientation have largely been left out in the rain -- at least at the national level. There is no federal law that specifically outlaws workplace discrimination on the basis of sexual orientation in the private sector -- although federal government workers are currently protected from such discrimination. (Attempts to pass a piece of federal legislation that would outlaw sexual orientation discrimination in private workplaces, known as the Employment Non-Discrimination Act, or ENDA, have been unsuccessful to date.)

At the state level, there is more cause for hope. Fifteen states and the District of Columbia have laws that currently prohibit sexual orientation discrimination in both public and private jobs: California, Connecticut, Hawaii, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, and Wisconsin. Illinois has also passed such a law that will go into effect on January 1, 2006. And in Oregon, while no state law has been passed to prohibit sexual orientation discrimination in private employment, at least one court case found that sexual orientation discrimination is prohibited under the state’s constitution (Tanner v. Oregon Health Sciences University, 157 Ore. App. 502, 971 P.2d 435 (1998)).

In addition, seven states have laws prohibiting sexual orientation discrimination in public workplaces only: Colorado, Delaware, Indiana, Michigan, Montana, Pennsylvania, and Washington.

If you are gay or lesbian and your state does not have a law that protects you from workplace discrimination, you may still be protected by city and county ordinances. Over 180 cities and counties prohibit discrimination on the basis of sexual orientation in at least some workplaces -- from Albany, NY, to Ypsilanti, MI.

To find out exactly what kind of protection your city, county, and/or state gives you from sexual orientation discrimination in the workplace, you can visit the Lambda Legal Defense and Education Fund website at www.lambdalegal.org. Lambda maintains a list of state-by-state antidiscrimination laws -- as well as other laws specifically affecting gays and lesbians. If you need additional information, you can contact the Lambda office in your region. There, an intake volunteer will either answer your question or, if you need more help, connect you with a volunteer attorney.

Some enlightened companies have adopted their own policies prohibiting discrimination based on sexual orientation. These policies prohibit such conduct and often provide disciplinary guidelines for dealing with it, up to and including termination of employment.

If you live in a place that has no specific laws protecting you, there may still be hope. Depending on the exact nature of the discrimination, you may be able to sue your employer -- or your coworkers -- under a number of general legal theories that apply to everyone:

• intentional or negligent infliction of emotional distress
• harassment
• assault
• battery
• invasion of privacy
• defamation
• interference with an employment contract, and
• wrongful termination.

You can obtain more information about gay and lesbian workplace rights from the National Gay and Lesbian Task Force at www.ngltf.org.