CHAPTERCHAPTER11 LAWS AND LEGAL PROTECTIONS

After many years of public age discrimination against workers over the advocacy, strategic litigation and age of 40, workers with disabilities, pregnant hard work, lesbians, gay men, women and those who belong to or refuse to bisexuals, transgender people, join a labor union. people living with HIV and their A growing number of federal courts around allies have achieved a variety of the country are recognizing that Title VII’s legal protections against workplace prohibition on workplace sex discrimination discrimination based on sexual bars discrimination against transgender orientation, gender identity and employees. Most courts that have reached HIV status. There are now federal this understanding recognize discrimination against transgender employees as a prohibited laws in place that protect people form of sex stereotyping. Judges are coming to living with HIV from discrimination understand the difference between sexual ori- in any workplace with 15 or more entation and gender identity and expression, employees, but LGBT people have and have been more inclined to interpret Title far less sweeping protections, as VII to prohibit discrimination on the basis of we will see below. gender identity or expression than sexual orientation. Passage of the Employment Non- Discrimination Act (see The Long Fight for Federal Employment Protections on page 7) FEDERAL LAWS would make gender identity protection explicit and unmistakable in federal law, as Sexual Orientation and Gender well as cover sexual orientation protection. Identity In contrast to workers in the private sector, all federal employees are protected against There is currently no federal law that explic- sexual orientation discrimination under itly forbids sexual orientation and gender Executive Order 13087. Federal law also identity discrimination in private-sector prohibits public employment discrimination (nongovernment) jobs. In some cases, LGBT based on sex, including sex stereotypes. If employees may be protected by the federal you experience discrimination for failure to sexual harassment and antidiscrimination conform to stereotypes about your gender, you provisions in Title VII of the Civil Rights Act may have a viable claim under federal law. of 1964. Title VII prohibits employment dis- crimination based on race, color, religion, sex Public employees enjoy certain constitu- or national origin. Federal law also prohibits tional protections against discrimination

LAMBDA LEGAL 5 because the Equal Protection Clause of the crimination by federal agencies or contractors Fourteenth Amendment prohibits the govern- or by employers that receive federal funding. ment (and government employers) from pur- The Rehabilitation Act provides protections posely discriminating against someone without similar to those provided by the ADA. justification. Public employees have also used the First Amendment’s right to free speech to Under the ADA, employers who do not protect the right to come out publicly. And want to hire a person because he or she is dis- Lambda Legal has successfully used the First abled cannot refuse to do so unless the indi- Amendment to defend the right of teachers to vidual’s disability would truly prohibit him or discuss LGBT issues in the classroom and to her from being able to perform the essential uphold the rights of public employees to asso- functions of the job. In 1998, the U.S. ciate with gay men and lesbians. Supreme Court found that a person with asymptomatic HIV was covered by the ADA. This is the view of the vast majority of courts HIV that have considered the issue, although a few have found that particular individuals living The Americans with Disabilities Act and the with HIV were not disabled. The ADA also Rehabilitation Act of 1973 are the two major outlines specific rules about providing confi- federal laws that protect people with disabili- dentiality and privacy for job applicants and ties, including people living with HIV. The employees with HIV. For instance, applicants ADA prohibits discrimination against people do not have to disclose their HIV status to because they are disabled or perceived to be a prospective employer unless it affects their disabled in any workplace with at least 15 current ability to perform the job. Prior to employees, other than federal agencies. The offering a job, an employer cannot test appli- Rehabilitation Act prohibits disability dis- cants for HIV. Once an employer makes a

WHAT IS U.S. LAW TODAY? a number of court decisions, Employers may not discriminate LGBT employees are protected against employees because of from sex discrimination in some race, color, religion, sex, national circumstances that involve gender- origin, pregnancy, disability, age based acts and stereotypes. (over 40) or union membership at The Equal Employment any stage of the employment rela- Opportunity Commission was tionship — from job advertise- established under the Civil Rights ments, application reviews and Act of 1964. The EEOC created interviews to working conditions, sexual harassment regulations, promotions, performance evalua- that have been used occasionally tions and references. The law is to protect LGBT people from still developing, but according to gender-based sexual harassment.

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THE LONG FIGHT FOR FEDERAL TIMELINE OF FEDERAL PROTECTIONS EMPLOYMENT PROTECTIONS In 1974, Representative Bella Abzug 1935EMPLOYMENT DISCRIMINATION BASED of New York introduced the first ON UNION MEMBERSHIP BANNED federal bill to ban sexual orientation discrimination in employment, housing and public accommoda- 1963SEX-BASED WAGE DISCRIMINATION tions. It did not pass. BANNED

Since that time, the Employment Non-Discrimination Act (ENDA), has 1964EMPLOYMENT DISCRIMINATION BASED gone through various incarnations ON RACE, COLOR, RELIGION, SEX AND and re-introductions, none of which NATIONAL ORIGIN BANNED has become law. In seeking political compromise, past versions have 1967EMPLOYMENT DISCRIMINATION AGAINST failed to include gender identity or PEOPLE AGE 40 AND OVER BANNED expression protections or have exempted small workplaces, religious organizations and nonprofit organiza- 1973EMPLOYMENT DISCRIMINATION AGAINST tions like the Boy Scouts. Some ver- FEDERAL EMPLOYEES WITH DISABILITIES sions have discarded the uniform BANNED right to equal benefits for equal work.

In an era of greater awareness and 1974BILL TO BAN SEXUAL ORIENTATION empowerment, transgender activists DISCRIMINATION IN EMPLOYMENT IS INTRODUCED BUT NOT PASSED and their allies insist that protections on the basis of gender identity can no longer be ignored or sacrificed in 1981EMPLOYMENT DISCRIMINATION AGAINST this battle. Notably, in 2006 three PREGNANT WOMEN BANNED states that passed sexual orientation nondiscrimination laws (Illinois, Maine, Washington) also included 1986EMPLOYMENT PROTECTIONS FOR gender identity. Today, advocates IMMIGRANTS PASSED insist that ENDA legislation must forbid employers with 15 or more 1991EMPLOYMENT DISCRIMINATION AGAINST employees from discriminating on the PEOPLE WITH DISABILITIES BANNED basis of sexual orientation or gender identity or because they believe that an employee associates with LGBT 1996ENDA MOVES TO THE SENATE FLOOR people. FOR A VOTE BUT DOES NOT PASS

LAMBDA LEGAL 7 conditional offer (conditioned on passing a including one with HIV, to perform the physical exam, for example), employers can essential functions of a job. test a prospective employee for HIV, but only As required by the ADA, what accommo- if the test is given uniformly to all prospects. dation is “reasonable” and must be provided An employer can ask about a prospective depends on the specific job, the employee’s employee’s health, but can’t use the answers medical needs and the employer’s size. An to screen out people with disabilities unless employer has the right to ask for information the screening is based on inability to perform to make sure the employee is disabled and in job-related functions. After an employee is need of reasonable accommodations and may hired, an employer can usually only ask ques- not have to provide an accommodation that tions about disability or health if the inquiry is too expensive or administratively difficult. is “job-related and consistent with business necessity.” All information and records obtained about an applicant’s or employee’s STATE AND LOCAL LAWS medical condition must be kept confidential A number of cities, counties and states have by the employer. passed laws that can help protect LGBT people Another useful federal safeguard for and people living with HIV. Unlike the federal employees living with HIV is the right to ENDA, which would specifically address reasonable accommodations. Depending on employment discrimination, many of the state, the circumstances, an employer’s reasonable city and county laws encompass a wider range accommodations could include approving a of protections, including housing and public flexible schedule, making the office wheel- accommodations. (Public accommodations are chair accessible or agreeing to other adjust- private entities who own, lease or operate facili- ments that allow a disabled employee, ties such as restaurants, retail stores, private

AT WILL EMPLOYMENT belong to a union, you are In most states, most workers are most likely an employee at will. employed “at will.” Generally, An employment contract or employee handbook may include they can be fired for any reason, specific information about how to with or without notice, except for make a work-related complaint, a discriminatory or illegal reason but promises made in an (i.e., race or sex) as defined by employee handbook are not federal, state or local law. Legal always enforceable. On the other avenues for at will employees are hand, employment protections limited. that your union obtains in a col- If you do not have an employ- lective bargaining agreement are, ment contract and you don’t by nature, enforceable.

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WHAT IS A PUBLIC protections than those working in EMPLOYEE? the private sector. Indeed, with the A public employee is a person exception of the military and pos- who is employed by a municipal, sibly intelligence positions, it is county, state or federal agency or widely recognized that sexual ori- state college or university. On the entation discrimination in a gov- whole, LGBT people who are ernment workplace lacks a rational public employees have broader basis and is unconstitutional.

schools, doctors’ offices, homeless shelters and outside of work, so this can cover LGBT day care centers, among others.) employees, as well. Finally, some states and municipalities have prohibitions against In 1982, Wisconsin was the first state to marital status discrimination that may cover outlaw employment discrimination based on employees who are trying to obtain recogni- sexual orientation. Nine years later, the next tion of their same-sex relationships. state — Hawai’i — enacted this protection, and now more than one-third of all states State nondiscrimination laws ban discrimi- protect employees from sexual orientation nation in hiring, promotion and firing and discrimination. Some states also prohibit expressly prohibit harassment based on sexual employment discrimination based on gender orientation (and sometimes gender identity identity or expression. To find out if your and expression), but they may not require state has laws prohibiting discrimination that employers provide equal benefits to their based on sexual orientation and gender iden- employees. A number of local government tity or expression, visit www.lambdalegal.org entities have tried to address that harm by for the most up-to-date information. making equal health benefits available to domestic partners of public employees. In While federal discrimination law applies 1997, the city and county of San Francisco only to employers with 15 or more became the first jurisdiction in the United employees, state laws generally cover smaller States to enact an Equal Benefits Ordinance employers. Many of these state provisions that requires city contractors to provide cover perceived sexual orientation and gender the same benefits to employees who have identity, so that people discriminated against domestic partners as they provide to because they are perceived to be gay or trans- employees who are married. According to gender can state a claim, even if they are not the Human Rights Campaign, as of March gay or transgender or not out. There also 2006, one state (California) and 12 cities and may be state or local laws that protect polit- counties had passed an equal benefits law. ical activity or expression, including coming out. Colorado and North Dakota also forbid Many states prohibit disability discrimina- employers from discriminating against tion, and some states expressly prohibit dis- employees based on their lawful actions crimination against anyone with HIV. In

LAMBDA LEGAL 9 addition, some cities offer specific protections public employee, there may be ways you can for workers with HIV. In some cases, these protect yourself or respond to unfair treat- laws provide greater protection for people ment in the workplace by using other laws in living with HIV than the federal protections place. For example, if your employer has a provided by the Americans with Disabilities contract or collective bargaining agreement Act and Rehabilitation Act. protecting you from discrimination for sexual orientation or gender identity and expression, All state laws have some exceptions. For you may have legal protections under labor example, many religiously affiliated employers contract law. are exempt from laws that prohibit discrimina- tion against LGBT people although publicly In addition, you may have other avenues funded religious organizations are sometimes of legal recourse because some forms of dis- held to a higher standard by the courts. crimination may violate state codes of profes- Some state laws also include exemptions for sional conduct or ethics. Certain tort and domestic workers and various categories of common law theories, such as infliction of nonprofit or tax-exempt organizations (i.e., emotional distress, defamation, breach of the social or fraternal clubs, charitable organiza- covenant of good faith and fair dealing, tions operated by political organizations and wrongful termination in violation of public youth service organizations). policy and interference with contract or prospective business advantage, may also While state laws prohibiting employment apply. An employee suffering harassment on discrimination only cover some LGBT the job may also be able to seek redress for people, protections granted by large cities emotional injuries through workers’ compen- and counties widen the scope. Close to half sation. And an employee who is fired after of all people in the United States live in an colleagues see her with her same-sex partner area that bars employment discrimination outside of work may be able to sue for inva- based on sexual orientation. According to the sion of privacy. Some courts have also applied Human Rights Campaign’s annual “State of other state nondiscrimination laws, including the Workplace” report from 2006, 162 coun- disability protections, to transgender ties and cities had outlawed sexual orienta- employees as well. In general, remember that tion discrimination in public and private the laws — particularly in the field of trans- employment and 82 counties and cities had gender rights — are evolving, and employers outlawed discrimination based on gender are not always following advances in the identity or expression in the workplace. courts. According to the National Center for Transgender Equality, more than 30 percent Lambda Legal secures legal precedents and of the U.S. population lives in an area that interpretations of the law that improve the bars employment discrimination based on working lives of LGBT people, people living gender identity or expression. with HIV and their allies. We also help people understand what these laws mean in everyday life. The following chapters describe OTHER LAWS THAT MAY some practical and proactive actions that PROTECT YOU individual employees and groups can take to create workplaces free from discrimination. If you live in an area without explicit legal rights for LGBT employees or you are not a

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