Jun 15, 2020
How Legal Discrimination in Most States Affects LGBTQ+ People
By Claire Grant
LGBTQ Americans have been susceptible to unequal treatment in the workplace and in housing.
This Pride Month, as we celebrate the LGBTQ+ community, it’s important to take stock of the community’s financial picture. And with unemployment at its highest in years because of the coronavirus pandemic, it’s also important to realize that until recently, reportedly more than half of Americans lived in states without complete protections for LGBTQ+ employees. On June 15, 2020, the Supreme Court ruled that the Civil Rights Act made discrimination based on sexual oritentation and gender identity illegal.
In fact, during the pandemic, when the national unemployment rate reached more than 14%, LGBTQ+ people have been disproportionately affected, according to a survey conducted by the advocacy group Human Rights Campaign. From April 16 to May 6, 17% of LGBTQ+ people had lost their jobs, compared to 13% of the general population surveyed.
Discrepancies are real between how LGBTQ+ people can be hired (and fired) compared to the way their straight counterparts.
While Title VII of the Civil Rights Act of 1964 made it illegal on a national level for employers to discriminate against their employees based on race, color, national origin, sex, and religion, the law did not provide specific protections for sexual orientation or gender identity. Title VII is enforced by the Equal Employment Opportunities Commission, a federal agency that investigates claims of discrimination against workers.
That has made LGBTQ+ people especially vulnerable to employment discrimination. While some states interpret the law to include sexual orientation and gender identity, many states still do not, and before the Supreme Court ruling, it was still legal to fire someone based on either their sexual orientation or gender expression in most states.
How states differ in LGBTQ+ protections
Although Title VII doesn’t explicitly protect LGBTQ+ individuals, some states have interpreted it to mean that LGBTQ+ people are protected under the “sex” qualifier of the law. Other states have gone further by passing laws that specifically protect LGBTQ+ people from job discrimination. Additionally, in 2104, President Obama issued an executive order protecting federal workers from discrimination based on sexual orientation or gender identity.
In the U.S., only twenty-two states and the District of Columbia have passed laws that explicitly ban discrimination based on sexual orientation and gender identity. The majority of states have a patchwork of protections. For example, six have passed laws pertaining to public employees only. One state—Wisconsin—has passed a law banning discrimination based on sexual orientation only. Four states have passed laws banning discrimination against public employees for sexual orientation only.
The remaining seventeen states have no laws prohibiting discrimination based on sexual orientation or gender identity at all.
(Note: Two U.S. territories have banned discrimination based on sexual orientation and gender identity. Three territories have no laws on the issue.)
The gap in Title VII, combined with differences among state laws, created an opportunity for discrimination against LGBTQ+ people not just in the workplace. The Fair Housing Act of 1968 bans discrimination based on race, religion, national origin, sex, handicap, and family status, when it comes to the sale, rental, or financing of a home.
Again, the Fair Housing Act doesn’t include sexual orientation and gender identity. Congress introduced a bill called the Fair and Equal Housing Act in 2019 to expand the protections to include sexual orientation and gender identity, but the bill hasn’t been passed.
Take it to the Supreme Court
On June 15, 2020 The Supreme Court delivered one of the biggest wins in LGBTQ+ rights since the court legalized gay marriage in 2015. In 2019, the Supreme Court heard three cases on the issue of whether or not Title VII protects LGBTQ+ people.
In two separate cases that were consolidated before the Supreme Court, Altitude Express Inc. vs. Varda and Bostock vs. Clayton County, two gay men independently claimed they were fired because of their sexual orientation. In a third case, R.G. & G.R. Harris Funeral Homes vs. EEOC, a transgender woman named Aimee Stephens claimed that she was fired over her gender identity.
The Supreme Court delivered its ruling in favor of the plaintiffs on those cases on June 15, 2020. The ruling expanded the protections in Title VII to include LGBTQ+ Americans. With President Trump’s nominees Neil Gorsuch and Brett Kavanaugh, there’s currently a conservative majority in the Supreme Court, and a ruling in favor of the LGBTQ+ community was somewhat unexpected.
Gorsuch ruled in favor of the plaintiffs along with Chief Justice John G. Roberts Jr., and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. Justices Samuel A. Alito Jr, Clarence Thomas, and Brett Kavanaugh ruled against the plaintiffs.
Resources for the LGBTQ+ community
Discrimination in the workplace can affect your finances by making it more difficult to get certain jobs, fair pay for work, and promotions. And of course, being unjustly laid off can have a devastating effect on your finances. Just because job discrimination against LGBTQ+ people is now illegal doesn’t mean discrimination goes away.
In the meantime, if you’ve experienced discrimination based on your sexual orientation or gender identity, there are resources you can consult. “Individuals who believe they have been treated differently because of their sexual orientation should first consult whether their state offers any protections,” says Robert C. Bird, professor of business law at the University of Connecticut.
With the Supreme Court ruling, remember that you’re now protected against discrimination by federal law. Bird suggests checking out the Equal Employment Opportunity Commission (EEOC) website, where you can find more information about federal protections for LGBTQ+ people. This EEOC investigates claims of discrimination in the workplace. You can file a claim of discrimination on their website. Keep in mind that you typically must file a claim within 180 days of the incident.
Additionally, Bird recommends “contacting the state’s equivalent employment law agency to better understand the rules in your area.” Some states have their own organizations that enforce state laws against discrimination.