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Protections for Sexual Orientation and Gender Identity Remain Piecemeal at Best

On May 31, the New York Times ran a useful overview of the state of legal protections for LGBTQ workers. It is not a pretty picture: there is still no protection at the federal level. In fact, in the majority of states, it is legal to fire someone for being gay or transgender.

The Supreme Court will soon rule on the constitutionality of same-sex marriage. (From Bloomberg: public support for legalization continues to increase.) As Tara Siegel Bernard’s article points out, while a ruling that opened the door to more such marriages would be more than welcome, it will have a strange and harmful consequence: “[W]orkers who may be permitted to add a same-sex spouse to a pension or a health plan, for instance, would be forced to expose their sexuality in a potentially hostile workplace to receive those benefits.”

This bizarrely contradictory scenario is possible because the protections for LGBTQ workers remain so weak. While the piecemeal laws that exist are better than nothing, they are far from enough. Per the Times:

A patchwork of state and local laws, along with court and agency decisions, provides some protections. Twenty-one states and the District of Columbia prohibit discrimination based on sexual orientation, according to the June report, which was co-written by the Center for American Progress and the Human Rights Campaign.

The picture is bleaker for people who are discriminated against for their gender identity; only sixteen states (plus Washington D.C.) protect those workers.

One positive development: an EEOC ruling last year which determined that disparate treatment based on gender identity “was indeed considered discriminatory under Title VII [of the Civil Rights Act of 1964] because it penalizes [workers] for failing to conform to gender stereotypes.” (Emphasis added.) Courts often look to EEOC decisions in their own rulings.

Check out the rest of our posts about civil rights and sexual orientation discrimination. If you have any questions about employment law, or disparate treatment you’ve experienced, contact us today.

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