Where is LGBT Discrimination in the Workplace Still Legal?

Posted by Sessions & Kimball |
lgbtq discrimination in the workplace

When it comes to LGBT rights, we live in a transition time here in the United States. There have been rapid changes over the last few decades with respect to attitudes towards LGBT people, with the greatest turning point probably being the U.S. Supreme Court’s 2015 decision legalizing same-sex marriage in all 50 states. And in many states, it is illegal to make adverse employment decisions concerning LGBT people based on their sexual orientation. Yet, in more than half of the states in the country, an employer can still fire an employee for being LGBT. Below, we go over what those states are, and discuss why the laws concerning LGBT people are as varied as they are.

28 States Permit Workplace LGBT Discrimination

California has long prohibited employers from refusing to hire an individual based on their sexual orientation, or taking adverse actions towards an employee, such as firing or demoting them, based on their orientation. Other states have varying statewide workplace protections. But in the following 28 states, LGBT employees do not have statewide protections against employers prohibiting such discrimination:

  • Alabama
  • Alaska
  • Arizona
  • Arkansas
  • Florida
  • Georgia
  • Idaho
  • Indiana
  • Kansas
  • Kentucky
  • Louisiana
  • Michigan
  • Mississippi
  • Missouri
  • Montana
  • Nebraska
  • North Carolina
  • North Dakota
  • Ohio
  • Oklahoma
  • Pennsylvania
  • South Carolina

  • South Dakota

  • Tennessee
  • Texas
  • Virginia
  • West Virginia
  • Wyoming

How Federal and State Discrimination Law Works Together

Most employers in those 28 states must comply with federal anti-discrimination and workplace laws as well as state laws. But at this point, there is no strong federal legislation protecting LGBT employees from sexual orientation discrimination. Title VII of the Civil Rights Act of 1964 protects employees from being discriminated against in hiring and employment decisions (termination, promotion, demotion, etc.) based on their race, color, national origin, or religion, or sex. And there are additional federal protections for workers based on age and disability status. Again, however, strong federal anti-discrimination laws for LGBT people are lacking, so states are on their own to determine whether to provide such protections.

If you are wondering how the Supreme Court’s 2015 decision on same-sex marriage plays into this all, it is important to understand several aspects of how that decision is distinct from anti-discrimination law. First off, the Supreme Court ruled that there was a constitutional right to same-sex marriage based on the right to privacy embedded in the US Constitution. When the Supreme Court finds that a constitutional right exists, no state may abridge that right, thus same-sex became legal in all 50 states as soon as the decision was handed down. That decision said nothing about an employee’s rights within the workplace to not be discriminated against based on their sexual orientation, and the Supreme Court has generally not found constitutional rights to be at stake in an employee/private-employer situation.

California Law Provides Strong Protections for LGBT Employees

If you are an employee and/or job applicant in California who has been discriminated against based on your sexual orientation, you may be able to pursue an employment discrimination claim. At Sessions & Kimball LLP, our exclusive focus is on protecting the rights of employees in the workplace. Our attorneys are listed among California Super Lawyers, and our firm has been named one of the region’s “Best Law Firms” by U.S. News and World Report. If you are facing discrimination in the workplace because of your sexual orientation, contact us today to schedule a consultation.