Sexual Orientation Discrimination

Sexual orientation and gender identity employment discrimination laws are constantly changing, both at the legislative and judicial levels. While Massachusetts law prohibits both sexual orientation and gender identity discrimination, many states do no not. At the federal level, although Title VII does not contain a specific prohibition, certain judicial opinions have interpreted Title VII to ban LGBT discrimination.

Sexual orientation discrimination in the workplace is specifically prohibited under the Massachusetts Fair Employment Practices Act (FEPA). Notably, in 1989, Massachusetts became only the second state in the country to ban employers in both the private and public sector from discriminating on the basis of sexual orientation. In 2011, pursuant to House Bill No. 1577, the Massachusetts legislature amended FEPA to prohibit employment discrimination on the basis of gender identity as well.

As noted by a Washington State Supreme Court dissenting opinion in Andersen v. King County, which considered the legalization of same-sex marriage three years after the landmark Goodridge decision in Massachusetts, employment discrimination against gay employees has been institutionalized at the highest levels of government:

During the McCarthy era, individuals suspected of being gay and lesbian were purged from government offices at an even higher rate than suspected communists; until the late 1990s, gays and lesbians could be barred from federal employment solely on the basis of their sexual orientation.

Employers face significant liability where an employee is discriminated against or harassed based on sexual orientation. In Pelletier v. Town of Somerset, for example, a jury awarded approximately $1.9 million to an employee who was treated differently and harassed based on her gender and sexual orientation. Although the Supreme Judicial Court ordered a new trial on statute of limitations grounds, it also recognized that substantial evidence existed to support the jury’s findings of unlawful discrimination, hostile work environment, and constructive discharge.

Likewise, in Walsh v. Carney Hospital, a Superior Court upheld a jury award of $625,000 in compensatory damages and $650,000 in punitive damages where the employee proved at trial that he was wrongfully terminated because of sexual orientation discrimination.

Unlike Massachusetts law, Title VII of the Civil Rights Act of 1964 does not specifically include sexual orientation or gender identity as protected classes. The Equal Employment Opportunity Commission and several federal courts, however, have interpreted Title VII as prohibiting employment discrimination on the basis of sexual orientation and gender identity.

• In Baldwin v. Foxx, for example, the EEOC reasoned that “[s]exual orientation discrimination also is sex discrimination because it necessarily involves discrimination based on gender stereotypes.”

• In Smith v. City of Salem, the Sixth Circuit found that the employer violated Title VII where it suspended an employee after he began displaying a feminine appearance and revealed that he planned to undergo a complete physical transformation from male to female. In doing so, the court relied on the Supreme Court’s ruling in Price Waterhouse and held that “[s]ex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as ‘transsexual,’ is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.”

• In Barnes v. City of Cincinnati, the Sixth Circuit once again held that “[a] claim for sex discrimination under Title VII … can properly lie where the claim is based on ‘sexual stereotypes.'”

• In Rosa v. Park West Bank & Trust, the First Circuit relied on Title VII precedent in the employment discrimination context to determine whether a loan applicant stated a claim for sex discrimination under the Equal Credit Opportunity Act. There, the court held that a transgendered loan applicant stated a claim for sex discrimination where he alleged that he was denied a loan application because he was dressed in traditionally female attire.

The EEOC’s publication “Examples of Court Decisions Supporting Coverage of LGBT-Related Discrimination Under Title VII” is a detailed collection of federal precedent interpreting Title VII to prohibit employment discrimination on the basis of sexual orientation and gender identity.

LGBT anti-discrimination laws vary widely by state, with some states like Massachusetts barring both sexual orientation and gender identity employment discrimination, some barring neither, and variations in between. The map below illustrates these differences through the following color key. Click or hover over each state for specifics:

• Green states have banned both sexual orientation and gender identity employment discrimination against all employees.

• Yellow states have taken steps to ban some form of LGBT employment discrimination. Some of these states, for example, only protect state employees from both sexual orientation and gender identity employment discrimination. Other states in this category protect all employees in both the private and public sectors, but solely against sexual orientation employment discrimination.

• Red states have taken no steps to ban either sexual orientation and gender identity employment discrimination in any context.

Overall, sixteen states, including Massachusetts, have comprehensive laws prohibiting employment discrimination against LGBT employees in both the private and public sectors. An additional fifteen states have taken steps to protect LGBT employees, but only in limited contexts. A total of nineteen states prohibit neither sexual orientation nor gender identity employment discrimination. Fortunately, LGBT employees who suffer employment discrimination in those states may seek relief under Title VII.

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