How To Fight Back Against Sexual Orientation Discrimination

Learn how the laws against sexual orientation discrimination apply to your situation, whether it revolves around work, the housing market, or a private transaction.

In the space of a few decades, LGBTQ people have made a great deal of social progress. Gay men, lesbians, and bisexual people can now serve in the military, get married, and sponsor spousal immigration visas.

Overall, LGBTQ people are more visible in American society than they have ever been.

And in 2020, a significant milestone was achieved in the U.S. Supreme Court case of Bostock v. Clayton County. The Court held that federal civil rights laws bar LGBTQ discrimination in the workplace.

Federal anti-discrimination laws now apply to LGBTQ people. It’s now illegal to make employment decisions because of sexual orientation or gender identity (e.g, transgender people). Co-workers may not discriminate or create a hostile work environment.

Bostock is not the only source of law protecting against discrimination, though.

This article will discuss the laws against sexual orientation and gender identity discrimination. These federal and state laws apply to the workplace, housing market, and sometimes even private transactions. Not all laws are equally effective, and not all are appropriate for all situations.

Discrimination in the Workplace

Two men walking and holding hands

The impact of the Supreme Court decision in Bostock is enormous. But it’s not the only protection for LGBTQ people against workplace discrimination.

Many states have laws protecting sexual orientation and gender identity in the workplace. Your exact options, and the best option for you, will differ based on your state and situation.

1. Federal Law

Bostock v. Clayton County involved federal law. The law in question was Title VII of the Civil Rights Act of 1964. Title VII forbids discrimination based on race, color, religion, sex, and national origin.

Justice Neil Gorsuch wrote in Bostock that anti-LGBTQ employment decisions were sex discrimination. Any such behavior by an employer is now unquestionably illegal under Title VII.

Before the Bostock decision, gay men, lesbians, and other LGBTQ individuals had to file state law claims. Title VII did not protect them. Now, many people in the United States have the option of using Title VII to fight back.

If your employer fires, fails to hire, or discriminates against you for being LGBTQ, you may now file a claim with the Equal Employment Opportunity Commission (EEOC). The EEOC will then investigate your claim, and may attempt to mediate or give you the right to sue in federal court.

Pursuing an EEOC charge or filing a federal lawsuit is a common strategy, but it’s not always the best one. Sometimes a lawsuit in a court run by your state is a better decision.

Compared to state courts, federal courts often hear fewer cases and fewer types of cases. However, they tend to be more conservative and sometimes more challenging for plaintiffs.

So, while being able to file an unlawful discrimination claim in federal court is important, it’s not the only option.

2. State Law

Many states have robust laws against sexual orientation discrimination in the workplace. Some also protect against discrimination on the basis of gender identity. The National Conference of State Legislatures publishes a list of all states that summarizes their respective anti-discrimination laws.

If you live in a state that does not protect sexual orientation or gender identity in the workplace, state law will not be an option. There is no remedy for you in state court. You will have to use the EEOC and federal court.

In states that protect LGBTQ people, you have options. Many states have agencies like the EEOC to which you must submit your unlawful discrimination claims before suing. (California, for example, requires complaints to be filed with the state Department of Fair Employment and Housing.)

If you do choose to sue in state court for sexual orientation discrimination, you cannot use Title VII. As a federal claim, it would have to be pursued in federal court. (You can file both state and federal claims together in federal court if you wish.)

If you don’t know whether to choose state or federal court, you should speak with an employment discrimination attorney.

Discrimination in Housing

Lesbian couple resting on sofa with their son

LGBTQ housing discrimination law is not as developed as employment discrimination law.

The Fair Housing Act (FHA), does not specifically apply to sexual orientation or gender identity. LGBTQ people can and do use it, though.

Sex is a protected class under the FHA, just as it is under Title VII. Thus, federal courts or federal government agencies may interpret it to protect LGBTQ people like Title VII does.

The United States Department of Housing and Urban Development (HUD) has also adopted an Equal Access Rule. The Rule requires equal access to HUD programs regardless of sexual orientation or gender identity. Violations of that rule should be reported directly to HUD.

Twenty-three states and Washington, D.C., also have their own laws about LGBTQ housing discrimination. Most of those directly prohibit discrimination on the basis of gender identity. The various agencies and mechanisms set up by those individual states investigate these claims. These states also provide remedies for illegal discrimination.

States drafted these laws specifically with LGBTQ discrimination in mind. They are broader and offer better protection against discrimination than federal law.

Weddings and Related Social Issues

LGBTQ wedding cake

The U.S. Supreme Court’s landmark 2015 decision in Obergefell v. Hodges settled the question of same-sex marriage in the United States. The Court held those marriages were valid and must be recognized under the United States Constitution.

All states and territories are now required to treat these marriages the same as opposite-sex marriages.

Despite this, there are still questions of discrimination by private parties. The fact that a marriage is legal and recognized by the government does not oblige private citizens to take part in marriage ceremonies.

Some in the United States have framed this as an issue of free exercise of religion. The Supreme Court has been difficult to pin down on the issue.

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the U.S. Supreme Court held that anti-discrimination laws must be applied in a way that is neutral toward religion. The Court then decided that a Colorado public agency violated the religious rights of a baker by holding that he had violated state civil rights law.

The Court said that the baker should not have been punished for refusing to bake a wedding cake for a gay couple. The law was not applied in a neutral way, and the judgment was reversed.

The Court’s decision was very narrow. It did not opine whether there was a conflict between religious rights and marriage rights. That issue may come before the Court at a later date.

For now, the lesson of Masterpiece Cakeshop is that the best practice is to respect others. If a private business owner openly discriminates in a way that has nothing to do with religion, that is a much clearer case.

For example, a florist who chases off a gay couple with hateful slurs has probably violated the law. One who refuses to provide flower arrangements probably has not.

Legal Help for Sexual Orientation Discrimination

LGBTQ community with pride flag on city street

The United States is in the midst of significant social change. The recognition of LGBTQ rights and same-sex partnerships is a fairly recent development. We must temper our progress, though, with caution and good judgment.

It’s always unacceptable to hire or fire someone for their sexual orientation or gender identity. Similarly, landlords should not discriminate against LGBTQ tenants.

Perceived discrimination in other contexts should be approached more thoughtfully. While it may be harmful, it does not generally rise to the level of seriousness as the other types of discrimination. And, it will not be treated as seriously by the law.

If you have been subject to discrimination on the basis of sexual orientation or gender identity, discuss the matter with a qualified attorney in your state. Contact a lawyer today for a free case evaluation and consultation.

Matthew Carter, Esq. has been a licensed attorney since 2004. He’s admitted to practice law in California and Nevada, where he was awarded the Martindale.com rating of AV – Preeminent. Matthew has successfully handled a variety of personal injury and wrongful death cases, as well as trials, appeals, and evidentiary hearings throughout state and federal... Read More >>

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