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The Changing Landscape of LGBT Discrimination Laws

There are no federal laws that ban discrimination for sexual orientation or gender identity in the workplace, but companies and lawmakers are working to change that.

Flint Dollar, a music teacher at Mount de Sales Academy in Macon, Georgia, was fired earlier this year after his employer learned of his plans to marry a man. 

Georgia is one of 29 states in which an employee can be terminated on the basis of sexual orientation, so Mount de Sales Academy didn’t break any laws by terminating Dollar after learning he intended to marry his longtime partner.

Similarly, Peter TerVeer, a former auditor at the Library of Congress, alleges that he was subjected to a hostile work environment and then later fired for being gay by his supervisor. A federal judge in Washington, D.C., granted a trial in the TerVeer case this past March.

In states such as Georgia, legal avenues are narrow for private-sector employees seeking justice for workplace discrimination based on sexual orientation, according to legal experts. 

Legal LGBT September 2014As there are no federal laws in place that protect sexual orientation, Dollar is suing Mount de Sales Academy on the grounds of sex discrimination under Title VII of the Civil Rights Act of 1964, which turned 50 in July. TerVeer also is suing his former employer on the same grounds, although Washington has laws prohibiting discrimination on the basis of both sexual orientation and gender identity. Both men argue that being gay is not considered stereotypically male and thus they do not conform to traditional gender stereotypes. As such, both argue their respective terminations should be considered sex discrimination.

Employees who have been fired for their sexual orientation and filed sex discrimination cases against former employers have had some success, but the results have not been consistent overall, said David Moore, an employment law attorney at law firm Laner Muchin in Chicago.

But lawmakers and companies alike have taken steps to create protections for some lesbian, gay, bisexual and transgender employees working in areas where none exist.

Eighteen states and the District of Columbia have laws explicitly protecting LGBT workers from being fired because of their sexual orientation or gender identity. Three other states protect only sexual orientation. Further, 91 percent of Fortune 500 companies already prohibit discrimination based on sexual orientation, and 61 percent prohibit discrimination based on gender identity, according to the Human Rights Campaign.

With an executive order, President Barack Obama amended two existing executive orders in July to extend similar employment protections to all federal workers as well as federal contractors and subcontractors who do more than $10,000 in government business in one year. The president’s amendment to Order 11478 added gender identity protections to all federal employees. The amendment to Order 11246 added sexual orientation and gender identity protections to federal contractors and subcontractors.

“For decades, companies have found that benefits and inclusive, flexible and supportive workplace policies make it easier and more cost-effective to recruit, retain and motivate employees. The same logic applies to extending these basic protections and policies to LGBT workers,” according to a White House statement on the amendments.

"Some will argue that protections for sexual orientation exist in this case law, but I think this executive order is going to give more protections than what’s already out there."

—Scott Kelly, Ogletree Deakins

Legal experts explained the changes made to Order 11478 went into effect immediately, while the changes made to Order 11246 should take effect sometime in early 2015. The U.S. Labor Department was given 90 days to develop proposed regulations and outline how they would apply to federal contractors and subcontractors. The guidance for Order 11246 was released on Aug. 26.

The executive order amendments continue a trend of Obama sidestepping a gridlocked Congress to make changes to the employment landscape. Earlier this year, he used an executive order to raise the minimum wage for federal contract and subcontract workers after a bill to raise the minimum wage for all workers was struck down in the Senate. Likewise, the amended executive orders allowed the president to provide employment protections to some LGBT workers after the Employment Non-Discrimination Act failed to pass the House of Representatives earlier this year. The law would have prohibited discrimination in hiring and employment on the basis of sexual orientation and gender identity.

Although there is not a nationwide ban on employment discrimination for sexual orientation or gender identity, the amendments will still cover a large portion of the country’s workforce. There are approximately 26 million government contract workers, which accounts for 22 percent of the total civilian workforce. Additionally, case law developing around sex discrimination under Title VII continues to offer more protections for LGBT employees.

 “There is some case law that has developed under Title VII of the Civil Rights Act for sex stereotyping. Some will argue that protections for sexual orientation exist in this case law, but I think this executive order is going to give more protections than what’s already out there,” said Scott Kelly, a shareholder at the law firm Ogletree Deakins.