Sexual Orientation and Gender Identity at Work: Legal Basics

Understanding discrimination on the basis of sexual orientation and/or gender identity.
Understanding discrimination on the basis of sexual orientation and/or gender identity.

Few workplace legal issues have received more attention – or have been more dynamic – in recent years than discrimination on the basis of sexual orientation and/or gender identity. It is a topic with a lot of moving legal parts, so employers should understand the different layers of current and potential future protections.

First, it is important for employers to understand that not everything with the word “gender” or “sexual” in it is the same thing. That’s not intended to be a flip or critical statement. If you don’t fully understand the difference between (A) sex assigned at birth, (B) gender identity, (C) gender expression, and (D) sexual orientation or attraction, this article by my colleague Kelly Atkinson, and drawing on Avery Belyeu from Lambda Legal, is a good starting point. It is important for employers to have an understanding when approaching these issues.

There are four levels of potential legal obligations. The first three are actual laws, and I approach those here in somewhat chronological order as they have developed. On a federal level, Title VII of the Civil Rights Act of 1964 is the seminal federal discrimination law, and among other things, prohibits discrimination “because of sex.” While there are a lot of opinions about what “because of sex” does and/or should include, there seems to be no dispute that, at the time the law was passed, nobody was talking whether it would prohibit discrimination on the basis of sexual orientation or gender identity. Until recently, that was a huge question mark and subject of debate in the courts. Back to that in a minute.

States and municipalities, however, do not need to wait for federal law in many instances. As is increasingly the case in the area of employment law generally, there has been substantial activity on this front. Locally, Columbus actually first passed an ordinance prohibiting discrimination on the basis of sexual orientation in 1974.

While well ahead of most governments on this subject, as a practical matter, the law has relatively limited enforcement and penalties, so we see very few employee claims under it. And of course, that’s just Columbus, though some other Ohio municipalities have protections as well, as you can see by clicking on the State of Ohio in this great map from the Movement Advancement Project (MAP).

A snapshot of Ohio. Movement Advancement Project. "Equality Maps: State Nondiscrimination Laws" Accessed 07/12/2021.
A snapshot of Ohio from the Movement Advancement Project. “Equality Maps: State Nondiscrimination Laws” Accessed 07/12/2021.

On a state level, the majority of states have laws prohibiting discrimination based on sexual orientation and/or gender identity, as you can also see on the MAP graphic noted above. As most readers will know, Ohio is not one of those states. There is a proposed Ohio Fairness Act in the General Assembly that would add Ohio to that list, but most commentators do not seem to think that it is likely to pass in the near future despite more bipartisan support than in the past.

Despite the lack of coverage in Ohio, the legal picture changed significantly in 2020 when the U.S. Supreme Court in Bostock v. Clayton County decided in a 6-3 opinion, written by Trump appointee Justice Gorsuch, that an employer who fires an individual merely for being gay or transgender does violate Title VII. Legally, that is a very big deal in the workplace. Note that this also means that harassment on the basis of an employee’s sexual orientation or identity is also illegal under Title VII.

That’s three layers of law – federal, state, and local. The fourth layer is employment policies. Employers can certainly choose to prohibit discrimination on grounds not protected by applicable law, and large corporations at least generally have implemented protections against discrimination on the basis of sexual orientation or gender identity long before the Bostock decision and much faster than states or municipalities.

According to the Human Rights Campaign, 91% of the Fortune 500 prohibit discrimination on the basis of sexual orientation, and 83% of them (compared to just three companies in 2000) prohibit discrimination on the basis of gender identity. A violation of a corporate policy will not normally result in the same kinds of remedies for an employee that a violation of a law such as Title VII would, but it is interesting and instructive that large companies have trended well ahead of governments in this regard.

As noted, this is a complicated and dynamic subject, and the exact contours of the Bostock decision will, like virtually any Supreme Court decision, evolve as the case is interpreted by lower courts. And this post does not touch on the scope of protections outside the employment setting, which is also a very active legal subject.

As always, the best protection against discrimination liability is making employment decisions on documentable business-based reasons, and every situation is a little bit different. It is usually prudent to consult with experienced counsel before terminating an employee.

We will be watching with you as this area continues to develop.

This article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.

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