You Can Be Fired for Your Sexual Orientation

iStockphoto/Thinkstock

Federal law clearly prohibits employers from discriminating against workers based on sex, race, age, and disability, but did you know employers are basically free to discriminate against you based on your sexual orientation?

President Barack Obama is being asked to change that, but any large-scale extension of federal law to include gay workers as a protected class is not likely anytime soon.

Federal Action?

The executive order Obama is being asked to sign would prohibit discrimination by federal contractors against workers based on their sexual orientation, according to ABC News. While Obama has been more supportive of gay rights than any president before him, a spokesperson for the president indicated that he’s not ready to sign anything yet.

“Now that he’s been re-elected, Obama should issue that EO,” says Joan Burda, a lawyer in Lakewood, Ohio, whose practice focuses on legal issues affecting the LGBT community. “Debarment from federal contracts is the usually penalty for violating such an EO. But, Obama has said he wants Congress to take action.”

“Congress has been considering the Employment Non-Discrimination Act (ENDA) since 1994,” she explains. ENDA “would provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity,” according to the Human Rights Campaign.

Burda says ENDA is the LGBT community’s best chance at securing protection from employment discrimination. But she says it’s unlikely to pass “because the Republicans control the House and they are not sympathetic to LGBT rights.” 

Some Protections Exist

In the meantime, gay and transgender workers do have some ways to protect themselves from discrimination in the workplace. 

Joan M. Burda

First, many states – 21 of them, plus the District of Columbia – do forbid employment discrimination on the basis of sexual orientation and/or gender identity, according to the National Gay and Lesbian Task Force. Add to that 140 municipalities, according to Burda.

“The states with the protection are in the West and Northeast,” she says. “Most southern states have no protection for LGBT persons in employment. There is a swath of states across the middle of the country that provide protection.”

Second, while sexual orientation is not one of the listed protected categories under the federal laws enforced by the EEOC, federal law’s prohibition of sex discrimination can help out gay or transgender employees.

“There are . . .  a number of instances where the prohibitions against sex discrimination . . . apply to individuals who may not meet stereotypical concepts of masculinity or femininity,” says an EEOC spokesperson.

That’s because the U.S. Supreme Court, in Price Waterhouse v. Hopkins in 1989, said a female employee who was told she’d have a better chance for promotion if she acted more femininely had an actionable complaint under federal law for sex discrimination.

EEOC Tries to Protect Workers

In a recent case brought by the EEOC, a federal contractor was found to have discriminated against a transgender police officer who was hired as a man and then had her job cancelled before taking it because she revealed she was transitioning to a woman.

“We ruled that discrimination occurred because the complainant was discriminated against because she did not meet the gender stereotypes of the employer,” says the EEOC spokesperson. “While this case deals with issues of transgender status, not sexual orientation, its logic would apply both in the private sector and also to other situations of not meeting gender stereotypes.”

“In those instances,” points out the spokesperson, “whether the failure to meet the stereotype is due to actual sexual orientation or to perceived sexual orientation, discrimination on that basis would be illegal sex discrimination.”

And lastly, federal law prohibits same-sex harassment in the workplace, so gay workers are at least also protected from that. The EEOC recently filed a lawsuit against an employer in North Carolina, where two male supervisors sexually harassed their male subordinates.

Burda points out the irony in that situation. “The courts seem to allow straight employees to sue if their gay supervisor subjects them to a hostile work environment or discriminates,” she says. “The reverse, however, is not true. A straight supervisor/fellow employees can discriminate against a gay employee with impunity.”