Discrimination against people for their sexual orientation is wrong, right? We should hire, promote, and pay people based on what they contribute to the business not on who they date (or don't date). But, federal law isn't clear and right now, LGBTQ people only have clear protections in place in some states.

Title VII of the Civil Rights Act of 1964 is the federal law which protects people on the basis of race, color, religion, sex and national origin. It doesn't specifically state sexual orientation, and as such the federal courts have been divided on whether or not you can be fired for being gay.

Some states have stepped into action and have made their own laws. 21 states (and Washington, DC) have put their own protections into place, leaving the majority of states on their own. Money.com put together an interactive map that can tell you the laws in your own state. California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, and Washington all have statewide legislation protecting people against sexual orientation and gender identity. Michigan and Pennsylvania have similar protections, but they come through court rules or executive decree rather than legislative action. Indiana and Wisconsin recognize sexual orientation as a protected class, but not gender identity.

The other states offer protection either for public workers only or no protection at all from the state level. Some cities within these states have acted. Idaho, for instance, has 11 cities with protections in place, while Texas has six cities with similar laws. Some states, like North Carolina, offer some protection to state employees but not to private sector workers.

Of course, Congress could have acted earlier and changed the law to specifically cover LGBTQ people, as many states have done, but they opted not to. The Supreme Court will give an answer over current federal law--one way or the other. I'm not making a guess over the outcome, but Congress can certainly change it if they don't like the ruling.

Because of the conflicts in how different courts have interpreted the federal law, the Supreme Court recently agreed to hear a combination of three cases to determine whether Title VII covers sexual orientation.

Regardless of where you are located, though your business decisions should be strictly on performance and not based on sexual orientation or gender identity. You don't have to discriminate even if your state law allows it. As employment attorney, Jon Hyman states:

Still, as an employer you could short-circuit all of this legal wrangling simply by not discriminating on the basis of sexual orientation and gender identity. I've never hid my personal belief that no one should suffer at work because of the gender of the person they love, or because of the gender with which they identify. Nothing SCOTUS says about this issue will alter my beliefs. I choose love (not hate), tolerance (not discrimination), and equality (not bigotry). Period.

Published on: May 2, 2019
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