Many LGBTQ people live in states that do not have laws protecting them from discrimination. In 29 states, it is not illegal under state law for an employer to fire a worker based on his or her sexual orientation or gender identity. While many people assume that they are protected against discrimination based on LGBTQ status, they might not be protected under state law. The U.S. Supreme Court heard arguments in three cases in 2019 that could determine whether federal protections apply to LGBTQ employees across the U.S. when the court releases its decisions. LGBTQ workers who have been discriminated against at work may want to get help from the attorneys at Swartz Swidler.
Cases heard by the Supreme Court
The three cases that were heard by the Supreme Court in 2019 include cases from workers who were fired from their jobs for being transgender or gay. The cases consider whether employment discrimination based on a worker’s LGBTQ status is prohibited by Title VII of the Civil Rights Act of 1964.
Sexual orientation and gender identity discrimination are not explicitly listed as protected statuses under Title VII. However, the Equal Employment Opportunity Commission and some courts have found that discrimination against LGBTQ workers is a prohibited type of sex discrimination. Currently, LGBTQ people in states that have not passed laws prohibiting discrimination against them based on their sexual orientations or identities can file discrimination charges with the EEOC. If the Supreme Court rules that LGBTQ people are not protected under federal law, the EEOC’s position that gender identity and sexual orientation discrimination at work will be invalidated.
Approximately 4.5% of the population in the U.S. identifies as LGBTQ. This is approximately 11 million people, and 88% are currently employed. If the court rules that they are not protected by Title VII of the Civil Rights Act, it could mean that they are not protected against workplace discrimination in many states. There are other areas in which people could be harmed beyond work. For example, sex discrimination is prohibited in education, housing, credit, and health care. If the court affirms the EEOC’s position, more LGBTQ people in the U.S. will be protected against unlawful discrimination based on their statuses.
State and local protections
There is a hodgepodge of state and local laws that protect LGBTQ workers. In 21 states, Guam, Puerto Rico, and the District of Columbia, some laws prohibit workplace discrimination based on gender identity or sexual orientation. There are also more than 280 local ordinances in cities and counties across the nation that prohibit sexual orientation and gender identity discrimination.
Since the laws vary from state to state, a worker who identifies as LGBTQ could be protected in one state but fired if he or she moves to a different state. Rulings from the EEOC do not always cover private, small employers. In some states without explicit prohibitions against discriminating against LGBTQ workers, the human rights commission will step in. For example, the civil rights commission in Michigan interprets Michigan’s law as prohibiting discrimination against workers based on sexual orientation or gender identity even though the state’s law does not explicitly include them.
The federal courts have been divided on whether gender identity and sexual orientation are protected under Title VII. When the court issues its ruling, the division between the federal court decisions will be decided.
Prevalence of discrimination against LGBTQ people at work
According to a survey by MAP in 2018, 25% of LGBTQ people reported that they experienced workplace discrimination. Among transgender workers, 27% reported that they were terminated, denied promotions, or denied jobs from 2016 to 2017. Between 2012 and 2016, approximately 50% of the sex discrimination complaints that were filed with the EEOC were filed by people who lived in states that did not have explicit laws protecting LGBTQ workers.
If the Supreme Court rules that LGBTQ workers are not protected by Title VII, that would not overturn existing state and local employment laws that protect LGBTQ workers in cities and states that have these laws. It also would not overturn decisions from state courts about sex discrimination laws within their states. However, a little more than half of LGBTQ workers in the U.S. would be more vulnerable because they live in states without protections for them.
In New Jersey, the New Jersey Law Against Discrimination explicitly protects workers based on sexual orientation and gender identity. This means that workers in the state will still be protected against workplace discrimination based on LGBTQ status even if the Supreme Court rules against the plaintiffs.
Contact Swartz Swidler
If you identify as LGBTQ and believe that your employer took adverse job actions against you based on your sexual orientation or gender identity, legal remedies may be available to you. Contact Swartz Swidler today to learn about your rights by calling us at 856.685.7420 or by filling out our contact form.