LGBTQ+ Discrimination in the Workplace: Laws, Barriers, and Resources

The LGBTQ+ community has been fighting for their civil rights for decades, and while there have been many challenges, there have also been triumphant victories. In a landmark ruling in June of 2020, the Supreme Court ruled that federal civil rights law protects gay, lesbian, and transgender workers from discrimination at work. While this was a huge milestone for the LGBTQ+ community, it is by no means the end of workplace discrimination or harassment.

The Center for American Progress (CAP) reports that between 15% and 43% of openly queer individuals — queer in this case meaning those who identify as gay, lesbian, bisexual, asexual, or non-heterosexual — face discrimination or harassment at work due to their identity.

CAP also found that 90% of transgender individuals experience mistreatment or harassment due to their gender identity. These numbers show that, despite growing acceptance of the community, biased attitudes still persist and LGBTQ+ individuals face an increased amount of discrimination compared to others.

Although federal legal protections are a substantial step forwards for LGBTQ+ workers, workplace harassment and discrimination will continue to be an obstacle as long as roughly 75% of such cases go unreported, especially in workplace cultures where employers do not support the victim, where employees may perceive mistreatment as normalized, or situations in which employees fear employer retribution.

However, with the support offered by these federal protections, there are many steps you can take, both as a member of the LGBTQ+ community and as an ally, to recognize, understand, and prevent LGBTQ+ discrimination in your workplace.

Legal Protections for LGBTQ+ Individuals in the Workplace

There are federal protections in place for LGBTQ+ employees in both the private and public sectors. These protections make it illegal to discriminate against people on the basis of their sexual orientation or gender identity. These legal protections include:

Title VII

Title VII of the Civil Rights Act of 1964 laid the groundwork for prohibiting discrimination against sex and stereotypic behaviors assigned to each sex. In recent years, it has been used to the advantage of some LGBTQ+ individuals fighting discrimination in a variety of settings. However, that was not its original intent, and Title VII does not provide the comprehensive and impermeable protections that the LGBTQ+ community needs.

Bostock vs. Clayton County Ruling

In the June 2020 case of Bostock v. Clayton County, the Supreme Court ruled that Title VII of the Civil Rights Act of 1964 protects employees from discrimination due to their sexual orientation or gender identity in the workplace. This was a ruling on three cases related to workplace discrimination that were consolidated into a single case.

After hearing arguments in October 2019, the Supreme Court determined that discriminating against an employee because of their sexual orientation or gender identity was essentially the same as discrimination on the basis of sex, which is a protected class under Title VII.

In the majority opinion, Justice Neil Gorsuch explains, “An employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” Under this ruling, it is discriminatory to accept a certain standard of conduct from employees of one gender, but not another. For instance, it would be discriminatory to accept female employees who are attracted to men, but not male employees who are attracted to men.

This decision effectively opens up what the term “sex” means in the legal context. While this ruling specifically pertains to employment discrimination against LGBTQ+ individuals, it sets an important legal precedent. The ruling has the potential to change how other legal issues related to sexual orientation and gender identity are addressed in the future.

The Equality Act

The Equality Act was brought to Congress in May of 2019, proposing sweeping legislation that would “prohibit discrimination on the basis of sex, gender identity, and sexual orientation, and for other purposes.” The act was passed by the House of Representatives in a bipartisan 236-173 vote, but has not yet been passed by the Senate.

Despite the Bostock v. Clayton County ruling, many LGBTQ+ groups still support and advocate for the passage of the Equality Act. The ruling only protects LGBTQ+ individuals in the workplace, and many advocates and activists believe the Equality Act is necessary to prevent discrimination in other crucial areas and institutions, including healthcare, housing, education, and public accommodations.

Recognizing LGBTQ+ Discrimination in the Workplace

The first step to stopping discrimination in your workplace is being able to recognize where and how discrimination takes place, both from an internal and external perspective. LGBTQ+ discrimination shares similarities with gender discrimination, but it specifically refers to poor or worse treatment on the basis of sexual orientation or gender identity. LGBTQ+ persons may experience discrimination from any part of their work experience, but most commonly it is seen:

• During hiring and recruitment;
• In shared or public office spaces;
• From fellow employees or administrators;
• In wage negotiations or pay gaps.

Discrimination or harassment in all these areas can make completing tasks, taking disciplinary action, and even reporting harassment unnecessarily difficult and seemingly impossible. Below, you’ll get a breakdown of what constitutes harassment in these areas, what legal recourse might be available, and how to use resources and allies to improve and protect your work experience.

LGBTQ+ Discrimination in the Hiring and Recruitment Process

Workplace discrimination is not exclusive to those employed by any given company; in fact, it can occur during the hiring and recruitment process before you start working for an organization. You could experience discrimination without ever working at a company. Some examples of discrimination in the hiring process include:

• Refusing to hire an employee who identifies as LGBTQ+;
• Withdrawing a job offer after finding out an employee’s sexual orientation or gender identity;
• Asking intrusive questions during the recruitment process.

Though these practices are effectively illegal, you may find yourself nervous about an interview or a job application, especially if you’ve encountered discrimination in the past. If you do experience discrimination or harassment during the hiring process, you should still take the time to report it, regardless of whether you’re offered the job.

LGBTQ+ Discrimination Within the Workplace

LGBTQ+ individuals may experience workplace discrimination at any time, or even multiple times, during their employment. Discrimination can come internally from other employees or company executives, or externally from clients or customers. Discrimination can look like:

• Paying LGBTQ+ employees less than other employees;
• Lacking accommodations for employees who identify as transgender;
• Purposely excluding LGBTQ+ employees from work events;
• Singling out LGBTQ+ employees for excessive disciplinary action or menial tasks.

Discrimination can impede your workflow and efficiency, and create a toxic work environment that can not only negatively affect your work performance and career trajectory, but also your health and wellbeing.

Workplace Harassment

The U.S. Equal Employment Opportunity Commission (EEOC) defines harassment as, “Unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.” They note that harassment becomes unlawful when it becomes a condition of employment or when it creates an environment that is hostile or abusive.

Similar to discrimination, employees may experience harassment at any time during their employment. Common examples of workplace harassment include:

• Using slurs or offensive language toward LGBTQ+ employees;
• Making inappropriate or insensitive jokes about LGBTQ+ employees;
• Name-calling or misgendering LGBTQ+ employees;
• Physical threats of violence to LGBTQ+ employees or loved ones;
• Property damage or vandalism to LGBTQ+ employees’ workspaces or personal belongings;
• Physical or sexual assault.

Of course, this is not a complete list of actions that constitute harassment. Any behavior that is repetitive or threatening from your employer, coworkers, or clients can be considered workplace harassment.

Harassment is incredibly harmful, both mentally and physically, threatening the safety of not just LGBTQ+ employees, but all employees. Dealing with a physically or sexually abusive co-worker is difficult and delicate because of the potential threat to your physical safety, in addition to your mental wellbeing. If you are experiencing any form of harassment, or witness any form of harassment, it is paramount to file a harassment complaint or, in some cases, alert police or emergency services in order to get proper protection and support.

LGBTQ+ Wage Discrimination

Pay disparity started in World War II when women first entered the workforce as manual laborers. Largely due to stereotypical views of female strength and temperament, they were paid significantly less than their male counterparts. This continued until 1963, when the Equal Pay Act was signed into law, designating that no employee could be paid less based solely on gender.

However, nearly 60 years later, the wage gap lingers, and there is still a significant difference in pay between not just men and women, but between LGBTQ+ and non-LGBTQ+ employees. This is because the burden of proof is on the employee, not the employer, to prove that they are being paid unfairly due to their sex, gender, or sexual orientation.

LGBTQ+ wage discrimination, or the “gay wage gap,” is another form of workplace discrimination. According to Forbes Magazine, heterosexual men are at the top of the wage pyramid, followed by gay men, heterosexual women, and then lesbians. Gender and Society’s research on mechanisms generating disadvantage found that the employment industry itself, rather than the specific occupation of individuals, is what maintains the gay wage gap, as well as the gender wage gap.

The World Economic Forum notes that, at the current rate of change, it will take about 100 years to close the gender wage gap — which means it could take well over a century to do the same for the gay wage gap.

LGBTQ+ Income and Socioeconomic Status

Like many marginalized groups, LGBTQ+ individuals are at a higher risk of earning low incomes. There is no single cause or reason for this wage discrepancy, but it is often attributed to the unique hardships LGBTQ+ individuals face in the workplace, as well as other socioeconomic factors. The Human Rights Campaign (HRC) reported that in 2017, LGBTQ+ youth and young adults were 120% more likely to be homeless than their cis-gendered or heterosexual counterparts. This can be due to:

• Being disowned by family members or caretakers;
• Running away from abusive caretakers or family members;
• Aging out of the foster care system;
• Housing discrimination.

Homelessness takes an incredible physical and mental toll on all individuals, but especially on LGBTQ+ youth. The HRC found that LGBTQ+ young adults experiencing homelessness were 62% more likely to attempt suicide than heterosexual individuals. Homelessness can also impede your education and ability to find work, which can drastically lower your earning power, especially in states that observe the federal minimum wage (and which, in most states, isn’t enough to live on).

Raising the Federal Minimum Wage

Historically, marginalized groups — such as LGBTQ+ individuals and persons of color — make up a large portion of minimum wage workers. Raising the federal minimum wage to $15 per hour could drastically help LGBTQ+ individuals, as well as cisgender, heterosexual persons employed in entry-level positions. The American Psychological Association states that raising the federal minimum wage to $15 would reduce the poverty rate of LGBTQ+ individuals by 25% to 30%.

In some localities, the minimum wage has already been raised to $15 per hour, or at least higher than the $7.25 federal rate. This wage increase has occurred primarily in large, metropolitan cities, such as those in the California Bay Area — and many of them are also friendly to the LGBTQ+ community. In addition to enjoying increased financial security, they may also be more comfortable and welcoming places to live, where one could be less likely to encounter discrimination or anti-LGBTQ+ attitudes.

Knowing Your Rights

Unfortunately, there are still many areas where the civil rights of LGBTQ+ individuals are not legally protected at the federal level. Further, many members of the LGBTQ+ community live in states with no anti-discrimination laws concerning housing, public accommodations, and other key areas. And of the states that do have legal protections, some anti-discrimination laws are better and more comprehensive than others.

Generally, though, state-level anti-discrimination laws cover these four areas:

• Housing — Protects LGBTQ+ homeowners and renters from being unfairly evicted, denied housing, or refused the ability to rent or buy property based solely on sexual orientation or gender identity.
• Education — Protects LGBTQ+ students from being denied education, being unfairly evaluated, or being inappropriately discriminated against in both public and private schools.
• Public Accommodations — Protects LGBTQ+ individuals from being denied service, refused entry to, or being unfairly discriminated against in public spaces, or in regards to using public services.
• Credit — Protects LGBTQ+ persons from being denied credit or lending services, such as mortgages or personal loans, on the basis of sexual orientation or gender identity.

Because of the varied quality and scope of anti-discrimination legislation, it’s imperative to know your rights as an LGBTQ+ individual. Stay informed about active legislation or any changes in your state and locality. The Movement Advancement Project maintains a map of the U.S. that details LGBTQ+ legislation at the state level that you can reference to see the laws in your area.

Institutions Campaigning for LGBTQ+ Rights in the Workplace

Though there are ongoing challenges facing the LGBTQ+ population, there are myriad supporters, advocates, and groups working alongside the community for their civil rights and legal protections. Not only do these institutions fight injustices currently experienced by the LGBTQ+ population, but they provide services and helplines that actively improve the day-to-day lives of the LGBTQ+ community. Some LGBTQ+ and ally organizations include:

• The ACLU — The American Civil Liberties Union is a well-established organization with a goal to represent and protect marginalized groups, such as LGBTQ+, people of color, women, people with disabilities, and many more.
• GLAD — Since 1978, GLBTQ Legal Associates and Defenders has been a loud voice for LGBTQ+ federal rights, and has provided legal assistance and defense for LGBTQ+ individuals being discriminated against due to sexual orientation, gender identity, and HIV status at the state and municipal levels.
• The Human Rights Campaign — the Human Rights Campaign is currently one of the largest supporters of LGBTQ+ individuals. They offer resources such as youth camps, state and local advocacy, and information on local, state, and federal issues.
• The LGBT National Help Center — the LGBT National Help Center provides free and confidential resources for LGBTQ+ individuals of any age, including hotlines, chat rooms, community support, information, and self-harm and suicide prevention.
• Planned Parenthood — Planned Parenthood is a national healthcare clinic that provides counseling services and certain medical care for LGBTQ+ individuals at little-to-no cost and is completely confidential.
• Pride at Work — Pride at Work is an LGBTQ+ workers union striving to end workplace discrimination against LGBTQ+ workers and institute federal protections. They have local chapters across the country, as well as resources for starting a chapter.
• The Trevor Project — The Trevor Project is an organization working to prevent LGBTQ+ youth suicide. They offer a 24-hour helpline, text line, and chat rooms for those seeking support, as well as their own social media server, TrevorSpace, as a space for LGBTQ+ teens and allies.

This is only a handful of the institutions all over the country working to represent, protect, and further the advancement of LGBTQ+ individuals. If you are in need of support, several of these services may have local branches, or they can connect you to a nearby community.

Resources for Transgender Individuals

While the entire LGBTQ+ community faces discrimination, transgender individuals are especially at risk. According to GLAAD, transgender people are four times more likely to be homeless than cisgender individuals, and 90% of transgender people have reported experiencing workplace harassment or discrimination.

It can be difficult for transgender individuals to feel safe in their workplaces or communities. Below are some resources for transgender individuals and transgender allies, both within the workplace and in their communities:

• HRC Coming Out at Work Guide — This resource from the Human Rights Campaign offers tips to transgender individuals about how to disclose their gender identity to employers and coworkers.
• HRC Trans Toolkit for Employers — This resource from the Human Rights Campaign explains how employers, Human Resources professionals, and fellow employees can better support their transgender coworkers in the workplace.
• National Center for Transgender Equality — The National Center for Transgender Equality is an advocacy group that fights for the rights and acceptance of transgender people in all settings, including the workplace. They also support other critical issues, such as voting rights and racial justice.
• Transgender Legal Defense & Education Fund — Since 2003, the Transgender Legal Defense & Education Fund has sought to end discrimination against transgender individuals in all settings, but particularly in “the key issues of employment, health care, education and public accommodations”.
• Transgender Law Center — The Transgender Law Center is the largest trans-led advocacy organization in the United States. In addition to advocacy in the legal realm, they also focus on education and empowerment for all transgender and gender-nonconforming individuals.