Lesbian, Gay, and Transgender Discrimination in the Workplace

Nov 13, 2013

gay, lesbian, transgender, gender identity, sexual orienteationHistorically, state and federal non-discrimination laws have not afforded protection to lesbian, gay and transgender individuals in the workplace.  In recent years, however, more and more states have passed laws prohibiting such discrimination the workplace.  As a recent Washington Post article reports, only 21 states and the District of Columbia have laws that prohibit discrimination of lesbians and gays in the workplace.  And only 17 states and the District of Columbia have laws that prohibit transgender discrimination in the workplace.

Massachusetts has laws in effect that protect against lesbian, gay, and transgender discrimination in the workplace.  In July of 2012, an amendment to the Massachusetts non-discrimination laws went into effect.  This amendment protects transgender individuals from discrimination in the workplace.  Therefore, it is illegal in Massachusetts to discriminate in the workplace based on “gender identity,” whether an individual is transgender, transsexual, transvestite, cross-dresser, etc.  Now, gender identity as well as sexual orientation, age, race, color, religious creed, national origin, and sex are protected classes in Massachusetts. Before the amendment, Massachusetts courts addressing transgender discrimination held that such discrimination fell under sex or disability discrimination.  However, laws such as Massachusetts’ that specifically include “gender identity” as a protected class make it easier for transgender individuals to bring a claim for such discrimination.

Currently federal law does not protect lesbian, gay, or transgender individuals from discrimination in the workplace.  However, on November 7, 2013, the Senate voted to approve the Employment Non-Discrimination Act (ENDA), which would make it illegal to discriminate in the workplace based on sexual orientation or gender identity, or the perception of either.

If enacted, ENDA would cover private employers with 15 or more employees, federal, state, and local governments, labor unions and employment agencies.  It would not apply to the military, small businesses with fewer than 15 employees, and some religious and religiously affiliated entities.  To prove discrimination under ENDA, the plaintiff would need to initially prove that the fact that they are lesbian, gay, or transgender was a motivating factor in the employment practice or decision, even if other factors were also present.  If a case were proven under ENDA, it would provide plaintiffs with the same remedies available for other types of discrimination, including compensatory damages, punitive damages, attorney’s fees, and court costs. For more information regarding ENDA, and frequently asked questions, see this Washington Post article.

Although ENDA to date has not been enacted, the federal agency charged with investigating acts of discrimination in the workplace, the EEOC, does investigate employers who discriminate against LGBTQ employees.  Here’s part of the EEOC’s statement on LGBTQ rights in the workplace:

“While Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity in its list of protected bases, the Commission, consistent with Supreme Court case law holding that employment actions motivated by gender stereotyping are unlawful sex discrimination and other court decisions, interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.”

If you would like to find out more about claims of discrimination, contact Boston, Massachusetts attorney, Maura Greene, Law Office of Maura Greene, LLC, Six Beacon Street, Boston, MA 02108, at 617-936-1580 or at maura@mauragreenelaw.com.  Maura Greene was listed in 2016, 2015, and 2014 in the Boston Globe as one of Boston’s highest rated employment attorneys.  She has also been named as a Super Lawyer in employment for the past five years based on peer recognition and professional achievement.

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