Employment & Labor Insider

This June, as corporations continue to roll back public support and funding for diversity, equity, and inclusion initiatives, it is important for employers to be familiar with the current state of employment protections for sexual orientation and gender identity at both the federal and state levels.

In many ways, inclusivity handled appropriately allows employers to attract and retain talent. And regardless of the current position of the federal government, employers must ensure that they are complying with applicable federal and state laws.

Federal protections  

The Supreme Court’s landmark Bostock v. Clayton County decision held (arguably on a limited basis) that discrimination based on gender identity/expression and sexual orientation is a form of unlawful sex discrimination under Title VII of the Civil Rights Act of 1964. Bostock remains the governing law at the federal level, regardless of recent executive orders from the Trump Administration that target DEI programs and indications that the current leadership at the U.S. Equal Employment Opportunity Commission may place less of a priority on pursuing cases alleging discrimination based on sexual orientation or gender identity. Although the federal government may not enforce these protections as aggressively as it did under the Biden Administration, Bostock is still valid law, and private plaintiffs’ attorneys may be expected to fill any void created by less-aggressive federal agencies. Thus, employers must continue to comply with all Title VII anti-discrimination requirements.

State law protections

Many states offer greater employment protections based on sexual orientation and gender identity than federal law. Twenty-three states currently prohibit discrimination based on sexual orientation and gender identity in public and private employment. Employers with employees in multiple states should ensure that they comply with all applicable laws – either on a state-by-state basis, or by complying with the laws of the most demanding state in which they have employees. Notably, three of the country’s most populous states with the largest economies – California, Illinois, and New York – offer the broadest protections.

Not surprisingly, California’s protections for sexual orientation and gender identity significantly exceed federal standards. The state Fair Employment and Housing Act prohibits discrimination based on sexual orientation, gender identity, gender expression, and transgender status. More significantly, the California Family Rights Act allows eligible employees to take job-protected leave to care for a same-sex spouse or a domestic partner. (The federal Family and Medical Leave Act allows leave for same-sex spouses but not for domestic partners.) Both California statutes apply to private employers with five or more employees, and to all public agencies.

Illinois also offers strong protections for LGBTQ employees. The Illinois Human Rights Act protects individuals from discrimination in employment, housing, financial credit, and public accommodations, as well as sexual harassment in employment and higher education. The IHRA was amended in 2006 to specifically include protections for actual or perceived sexual orientation, and again in 2019 to include protections for gender identity, one of the first state laws in the country to do so.

In New York, state law protects employees from discrimination based on sexual orientation, gender identity, and gender expression in hiring, pay, promotions, and benefits. New York City goes further, requiring in addition that bathroom access be provided based on gender identity and that employee preferences regarding pronoun use be respected by employers. New York State differs from most states in that it does not require that allegedly harassing behavior be “severe or pervasive.” Thus, it is critical for employers operating in New York to identify potentially discriminatory behavior from the outset, even if it has not yet reached the level that the employer would consider “severe” or “pervasive.”

California, Illinois, and New York are only examples. As noted above, 20 additional states have fair employment practices laws that protect employees based on sexual orientation and gender identity, and more states are likely to enact such laws in the future.

Conclusion

It is crucial for employers with employees across multiple states to ensure that their policies, handbooks, and workplaces are compliant with federal law and all applicable state and local laws, including those that provide protections from discrimination based on sexual orientation and gender identity. Employers would be well advised to continue to advance workplace policies that protect all employees – including LGBTQ employees – despite the position of the current administration.