Sexual Orientation Not a Federally-Protected Class
Despite fairly broad federal civil rights laws that have been in place for years, there is no federal law that covers discrimination against people based on their sexual orientation. While some state and local laws do cover discrimination based on sexual orientation, these laws certainly do not exist nationwide. Therefore, if you are being discriminated against on the basis of your sexual orientation, you should seek an attorney that can more specifically advise you as to what legal protections are available to you in your area of the country.
Federal laws currently prohibit employment discrimination based on race, color, sex, religion, national origin, age, and disability, but not sexual orientation or gender identity. However, Congress is currently proposing a bill, the Employment Non-Discrimination Act (ENDA), which would make it illegal for private employers to discriminate based on sexual orientation. Without this bill, GLBT persons have no federal protection against employment discrimination in the private sector.
Common Discrimination Complaint
The most commonly complained-of type of discrimination based on sexual orientation occurs in the private sector workplace, according to the Lambda Legal Defense and Education Fund. There may be coverage for selected types of discrimination under broader federal laws; for instance, some courts have applied sex discrimination laws to transgendered persons who have encountered discrimination in the workplace. Another example is persons who are HIV positive; the Americans with Disabilities Act prohibits employers from discriminating against workers based on their HIV status. Plus, if you are an employee of the federal government, there is an executive order that prohibits discrimination based on sexual orientation. Despite these specific situations where legal recourse may be available, discrimination against persons based on sexual orientation is likely to go unchecked in the absence of an applicable state or local law, which exists in less than half of the states.
Some States Protect, Most Don't
There are some states and localities that have laws specifically outlawing discrimination in the private sector workplace based on sexual orientation. Still other states have laws that prohibit such discrimination in the public sector workplace only. Plus, there is a handful of states, counties, and/or cities that ban discrimination based on gender identity.
Even if you live in an area of the country where there are no state or local laws prohibiting discrimination based on sexual orientation, there are many legal theories under which you might have some recourse. After all, discrimination on the basis of sexual orientation is a relatively new and constantly evolving area of the law, so you may be able to fight back against an employer that discriminates against you on this basis. And, for the very same reason, if you are an employer, you would be well-advised to avoid basing any employment decision on an employee’s sexual orientation.
If you feel that your employer has discriminated against you based on your sexual orientation, you should first consult an attorney and/or state or local civil rights agency in order to determine if you have any recourse. If you are unable to find information in your area, contacting an empolyment attorney with experienced in employment discrimination is imperative. They may be able to help you with your legal issue, or at least point you to available resources.