Legal Issues and Recent Developments, Published by the Lurie Law Firm LLC

Sexual Orientation

Traditionally, gay and lesbian employees have found little in the law to protect them from discrimination and harassment in theworkplace. Times are changing, however, and a growing number of employers are finding themselves responsible for providing a workplace that’s free of harassment and discrimination based on sexual orientation.

Antidiscrimination Laws

Federal laws.  While there is no federal law that prohibits this type of discrimination in private employment, an executive order specifically outlaws discrimination based on sexual orientation in the federal government.

If you are a private employer and you operate your business in a state, county, or city with a law or ordinance prohibiting sexual orientation discrimination, you must follow that law despite the fact that there is no federal law in place.

State laws. Twenty states and the District of Columbia have laws that currently prohibit sexual orientation discrimination in private employment: California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin. Some of these states also specifically prohibit discrimination based on gender identity. (In addition, a handful of states have laws prohibiting sexual orientation discrimination in public workplaces only.)

Local laws.  Locally, many cities and counties nationwide prohibit sexual orientation discrimination in at least some workplaces — from Albany, New York to Ypsilanti, Michigan.To find out whether your state, county, or city has a law prohibiting discrimination on the basis of sexual orientation, contact your state labor department or your state fair employment office. You can also visit the Lambda Legal Defense and Education Fund website at www.lambdalegal.org, where you will find a state-by-state list of antidiscrimination laws, including city and county ordinances.

Other Ways Employees Can Sue You

Even if there is no law in your state, city, or county prohibiting sexual orientation discrimination, you should tread lightly in this area. A prudent employer won’t make decisions based on factors or characteristics unrelated to the job (such as sexual orientation), even if no law explicitly prohibits it.If you have an employee who feels that he or she has been treated unfairly and/or injured because of his or her sexual orientation, that employee can still sue you under a number of legal theories that have nothing to do with discrimination.

These theories include the following:

  • intentional or negligent infliction of emotional distressharassment
  • assault
  • battery
  • invasion of privacy
  • defamation
  • interference with employment contract, and
  • termination in violation of public policy. 

© 2010 Nolo. Reprinted with permission from the publisher, Nolo, Copyright 2009, http://www.nolo.com

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The Law Office of Mark D Lurie LLC represents employers and employees throughout Northern New Jersey and Central New Jersey, Montclair, Livingston, Caldwell, West Orange, Newark, Morristown, Hackensack, Newark, Elizabeth, New Brunswick, Paterson, Jersey City, Ridgewood, Wayne, Clifton, Passaic, Union City, Bayonne, Teaneck, Irvington, Union, Edison, Piscataway, Lawrenceville, Princeton, Hoboken, East Hanover, Saddlebrook, Parsippany, Roseland and Woodbridge; as well as the counties of Essex, Bergen, Passaic, Middlesex, Morris, Union, Sussex, Warren, Hudson and Mercer.