Issues + Advocacy

What You Need to Know About LGBTQ Workplace Policies

There are many convoluted things about the American legislative system, and by far one of the most damaging is the patchwork of laws across the nation that mean the civil rights of workers vary widely from state to state. LGBTQ workers are among the least protected groups in the nation, despite comprising 4.5 percent of the population (11.4 million people), according to the Williams Institute at the UCLA School of Law. The main areas where LGBTQ discrimination occurs are on the basis of sexual orientation, which is a person’s romantic or sexual preference; gender identity, which is the gender that she identifies as; and gender expression, which is how she shows her gender through her name, clothing or other means of expression.

Only 20 states prohibit LGBTQ discrimination in the workplace the same way that they prohibit discrimination on the basis of race or disability, according to the campaign Freedom For All Americans, which tracks laws regarding LGBTQ discrimination around the country. The other 30 states either do not include LGBTQ workers in their nondiscrimination laws, or have partially-inclusive laws — which is not at adequate at all.

If a state doesn’t officially have a law on the books that protects LGBTQ workers, the civil rights enforcement agency still enforces the nondiscrimination law as if it does, said Christy Mallory, J.D., director of state and local policy at the Williams Institute. And on the federal level, the U.S. Equal Employment Opportunity Commission acknowledges that it interprets discrimination on the basis of gender identity or sexual orientation as a form of sex discrimination. The EEOC has enforced protection for LGBTQ workers under Title VII of the Civil Rights Act, which reads:

“It shall be an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

The EEOC does this regardless of the local and state laws, which is theoretically a form of protection for LGBTQ folks who live in states who leave them out of nondiscrimination laws. However, this situation could change next year, as the Justice Department under the Trump Administration has directed the EEOC to stop doing this. In the fall, the Supreme Court began hearing oral arguments in several cases that could determine whether protection from discrimination “because of … sex” is meant to include gender identity or sexual orientation.

Here’s a closer look at some of the states (and one district) that prohibit employment discrimination against their citizens for being LGBTQ:

Washington, D.C.

Okay, it’s not technically a state (yet!), but the District of Columbia, population 700,000, has strong employment protections for LGBTQ folks.

The D.C. Human Rights Law has prohibited discrimination on the basis of sexual orientation since 1973. In 2006, it was updated to include gender identity and expression, according to Freedom For All Americans.

According to Movement Advancement Project, D.C. is notable for having both employment nondiscrimination laws and nondiscrimination policies for state employees that address both sexual orientation and gender identity.

You can find resources to address LGBTQ discrimination in the District from the LGBTQ Bar D.C., and about transgender rights in D.C. from the D.C. Trans Coalition (in English and Spanish).

California

California, population 40 million, has some of the best employment nondiscrimination laws in the nation for LGBTQ workers, said Mallory.

California’s law prohibits discrimination on the basis of sexual orientation and gender identity and expression, and it applies to both public and private employees, according to the California Department of Fair Employment and Housing. (However, this nondiscrimination law only applies to employers with five or more employees).

You can find more resources at Equality California, a statewide LGBTQ civil rights organization.

But there are states where the lack of LGBTQ workplace protections make it legal to discriminate against people based on their sexual orientation or their gender identity and expression, according to Freedom For All Americans:

Here’s a closer look at some of the states with the most discriminatory laws:

Virginia

Virginia, population 8.5 million, is one of the worst states for LGBTQ discrimination in the country. While 12 cities and counties there have passed local ordinances or made executive orders in support of workplace nondiscrimination, there is no policy at the state level. Virginia’s Human Rights Act does not prohibit discrimination against people on the basis of their sexual orientation or gender identity and expression.

Equality Virginia, a civil rights organization based in the state, notes that employees can be fired based on their “real or perceived” gender identity or sexual orientation — and it’s totally legal.

Cathryn Oakley, Human Rights Campaign state legislative director and senior counsel, agreed in an email that the state’s nondiscrimination laws are poor.

“Virginia’s nondiscrimination laws in private employment don’t have penalties attached, gutting their effectiveness,” wrote Oakley. “And the public accommodations law is a statement of principle, but doesn’t afford meaningful legal protection.”

LGBTQ employees in the state can find resources from Equality Virginia. You can find businesses in Virginia which have pledged to protect their LGBTQ employees, as well as not turn away LGBTQ customers, at Virginia Fairness.

Mississippi

Mississippi, population 3 million, is another state that does not prohibit discrimination on the basis of sexual orientation or gender identity or expression. The American Civil Liberties Union in Mississippi notes that in 2016, legislation to make the state’s civil rights law more inclusive died in committee.

In fact, that same year Mississippi Governor Phil Bryant, a Republican, signed the law HB1523, which allows employers to discriminate against LGBTQ people by citing “sincerely held” religious beliefs. Among these beliefs are that “an individual’s immutable biological sex” is determined at birth, and marriage is between one man and one woman.

Mississippi Today notes that it’s “often called the most sweeping anti-gay legislation in the country.” Added Mallory, “We see like a bunch of these religious exemptions, but [Mississippi’s is] both the broadest in terms of the areas that it covers and the most targeted specifically targeted toward LGBT people — so that’s a particularly bad law.”

You can find resources regarding LGBTQ discrimination in Mississippi from the Campaign for Southern Equality.

Texas

Texas, population 28.7 million, also does not prohibit LGBTQ discrimination in its civil rights law, according to Equality Texas. Discriminating against people on the basis of sexual orientation and gender identity or expression are both legal.

Although a number of cities, including Austin and Dallas, and counties have local ordinances that protect LGBTQ people from employment discrimination, the lack of a comprehensive statewide civil rights law is damaging for millions of Texans.

You can find businesses that pledge to welcome LBGTQ workers at Texas Competes, and find more resources for LGBTQ folks at Equality Texas.

Florida

Dozens of cities and counties in Florida have local ordinances prohibiting discrimination on the basis of sexual orientation or gender identity and expression, according to Equality Florida. Yet the state, which has a population of 21 million, does not protect these groups in its civil rights law.

The Florida Competitive Workforce Act,” or SB 430, is a bill which seeks to add the prohibition of discrimination on the basis of gender identity and expression and sexual orientation to the Florida Civil Rights Acts. It died in committee in May 2019.

You can find resources for LGBTQ folks at Equality Florida and learn about businesses that support LGBTQ discrimination in the state at Florida Competes.

Georgia

Georgia, population 10.5 million, does not have a comprehensive civil rights law, according to the campaign Georgia Unites Against Discrimination. Instead, the state has a smattering of laws that address specific issues, like age discrimination and equal pay, but prohibition on discrimination on the basis of gender identity and expression or sexual orientation are not included in those laws.

You can find businesses that support LGBTQ rights in the state at Georgia Prospers, and find more resources for LGBTQ folks at Equality Georgia.

North Carolina

In 2017, the governor of North Carolina, population 10.3 million, signed an executive order prohibiting discrimination on the basis of sexual orientation or gender identity and expression in state government agencies or for state government contracts. This executive order affects 55,000 employees. Yet North Carolina has experienced a complicated mishmash of laws over the past few years regarding nondiscrimination laws, and still does not have statewide legislation that all protects LGBTQ employees, according to Freedom for All Americans.

You can find more resources for LGBTQ workers in the state from Equality North Carolina.

Because of the complexity of discrimination laws by state, or city even, workers looking to move to a new state for a job should learn the details of its nondiscrimination laws, as well as any local ordinances, and how they may affect them and their families.

Jessica Wakeman is a journalist who focuses on women’s social, cultural and political issues. Her work has appeared in Bitch, Bust, Bustle, Glamour, Rolling Stone, The Cut, The New York Times and numerous other publications. You can read her work here.