Until recently, it was legal (and fairly commonplace) for employers to refuse to hire a person because of his or her sexual orientation or gender identity. Thanks to state and federal LGBTQ non-discrimination laws, that practice is dying out.
What Are LGBTQ Nondiscrimination Laws?
Twenty-one states and the District of Columbia have LGBTQ non-discrimination laws. In addition, 26 states are part of a federal circuit with a judicial ruling that interprets existing federal nondiscrimination law (under Title VII) to include discrimination based on sexual orientation and gender identity. (Some of these states overlap.)
What does that mean? Well, quite simply, it means that employers may not discriminate based on sexual orientation or gender identity. Most state laws detail prohibitions against discrimination in recruiting, interviewing, hiring, promoting, establishing work conditions or firing.
In addition, labor unions in these states may not deny membership to otherwise qualified people based on sexual orientation or gender discrimination. And employment agencies are prohibited from discriminating in job referrals or interviewing. In fact, a few states explicitly prohibit newspapers and job sites from publishing discriminatory job announcements.
Most likely, if you employ people, you are already familiar with laws that protect workers from discrimination based on sex, race, religion, national origin, and disability. LGBTQ non-discrimination laws work the same way. These states are simply adding sexual orientation and gender identity to their lists of protected classes.
It is important to note that many of these state LGBTQ non-discrimination laws address more than just discrimination in employment. Some of them address public accommodations, housing, credit, and state employees in particular. For the purpose of this article, we are focusing on employment laws only. However, if you run an organization that serves customers in one of these other areas, you may want to check out this map.
Are There Different Categories of LGBTQ Nondiscrimination Laws?
Yes. In fact, the Movement Advancement Project–a think tank focused on nondiscrimination laws–divides states into six categories.
- State law expressly prohibits discrimination based on sexual orientation and/or gender identity.
- The state interprets existing sex nondiscrimination law to include discrimination based on sexual orientation or gender identity.
- State law prohibits discrimination based on sexual orientation, but not gender identity.
- The state is part of a federal circuit in which a court ruling found that Title VII (the federal law prohibiting sex discrimination) also prohibits discrimination based on sexual orientation or gender identity.
- The state prohibits discrimination against LGBTQ people in government employment.
- The state has no law addressing LGBTQ discrimination.
Let’s examine these six categories a little closer.
1. States with LGBTQ non-discrimination laws.
In these states, employers may not discriminate against employees or potential employees based on their sexual orientation or gender identity. The law covers all the letters in LGBTQ. (Lesbian, gay, bisexual, transgender, questioning/queer.)
If you’re wondering what questioning/queer means, you’re not alone. Those two words actually have a number of meanings, and all of them are acceptable, according to the Human Rights Campaign and GLAAD. “Queer means that you are one of those letters (LGBT), but you could be all of those letters and not knowing is OK,” said Cleo Anderson of GLAAD in an interview with USA Network. “Questioning” is a term that the LGBTQ community sometimes uses to describe a person who is still discerning their sexual orientation or gender identity.
Twenty-one states and the District of Columbia fall into this category. (See this map.)
2. Existing Nondiscrimination Law Covers LGBTQ.
In Michigan and Pennsylvania, the courts have expressly interpreted existing sex nondiscrimination laws to cover sexual orientation and gender identity. This means that LGBTQ workers in these two states have essentially the same rights as they would in the twenty-one states mentioned above.
3. States with LGB non-discrimination law.
In one state, Wisconsin, employers are expressly prohibited from discriminating against lesbian, gay, and bisexual people. There is no state policy that protects transgender people from employment discrimination. However, Wisconsin also falls into our next LGBTQ non-discrimination laws category.
4. States where federal sex nondiscrimination law applies to LGBTQ workers.
Here’s where it gets a bit more complicated. Several federal circuits, which cover a total of 26 states, have made rulings that interpret existing federal sex nondiscrimination laws as covering sexual orientation, gender identity, or both.
To be clear, in some of these states, the courts have decided that federal law prohibits discrimination based on sexual orientation only. In others, gender identity only. And in still others, both sexual orientation and gender identity. In all of these states, LGBTQ people are protected from employment discrimination if that protection is specified in either the state law or federal law as interpreted by the courts. (See the map below to find out if your state falls into this category.)
5. Public Employment Nondiscrimination Laws.
This category applies to 31 states and the District of Columbia. The law explicitly forbids discrimination based on sexual orientation or gender identity in government jobs. This means that it is illegal for government employers to discriminate against any LGBTQ employees or job applicants. In Missouri, Arizona, and Alaska, state law only prohibits lesbian, gay, and bisexual discrimination in government jobs. And 16 states have no LGBTQ non-discrimination laws covering public employees. However, several of these states are part of the federal circuits we mentioned above. This means that LGBTQ people do have some federal protections.
6. States with no law addressing LGBTQ discrimination.
Unfortunately, there are still 11 states where neither state nor federal law protects LGBTQ people from employment discrimination in any capacity.
Should Your Company Have Its Own LGBTQ Nondiscrimination Policy?
It’s important for employers to understand the law and to stay in compliance. But what about your own company policies? Should they address discrimination based on sexual orientation and gender identity? Our recommendation is yes.
Not only is it the right thing to do, but it’s also better for business. Many studies have shown that a diverse workforce can improve a company’s bottom line. When your staff is made up of people from diverse backgrounds, they bring all of their unique experiences with them. This improves productivity and leads to a larger pool of ideas and strengths for your company.
You can’t achieve true diversity if any group of people feels ostracized or excluded.
A company policy and culture that welcomes employees from all backgrounds, including the LGBTQ community, can also strengthen your relationships with your customers. A non-discriminatory and welcoming business model makes customer communication easier and more effective. It creates trust