Can an LGBTQ+ Discrimination Lawyer Help to Save Your Job?

What counts as illegal LGBTQ+ employment discrimination?

In general terms, the law forbids anti-LGBTQ+ bias that has a concrete, negative effect on your terms of employment compared to the terms offered to similar but non-LGBTQ+ employees. This includes getting fired, of course, but also being refused pay raises or promotions on the basis of your sexual orientation or gender identity; being paid less for the same work; getting harsher discipline for the same offense; or being denied career-enhancing opportunities that are available to others.

Harassment and a hostile work environment may also count as anti-LGBTQ+ discrimination, depending on circumstances. If other workers display photos of their spouses, for instance, but you are discouraged from doing so, that could be a sign of hostility — or if your manager always asks after the families of other workers, but never asks about yours. Explicit homophobic comments are always a red flag, but more subtle indicators could include frequent references to harmful stereotypes; a manager’s use of “gay” as a pejorative term; and invasive or prurient questioning.

As with all forms of discrimination, the frequency and severity of such behavior matters. In some cases, a single, shocking slur might be enough to prove illegal bias — especially if your employer takes no action when it’s reported. In other cases, you may need to document a series of events. A good employment attorney can help you to assess your situation.

I work in a state that doesn’t have a law forbidding LGBTQ+ discrimination in the workplace — and my community is quite homophobic and anti-trans. Am I still protected?

Yes, as long as your employer is covered by Title VII, a federal law. There used to be some debate about this, but the Supreme Court’s ruling in Bostock v. Clayton County, Georgia is clear: Workplace discrimination against LGBTQ+ employees is illegal across the entire United States.

Title VII doesn’t cover private companies with fewer than 15 employees, and there are other narrow exceptions. In particular, some religious employers can argue that they have a free pass to discriminate — but such arguments mostly apply to churches and sectarian schools, and courts assess them on a case-by-case basis. An employment lawyer can help you to confirm that you’re protected by Title VII.

What if I work at a small employer that’s not bound by Title VII?

You could still be protected. Many states, and even some individual counties and municipalities, have enacted local anti-discrimination laws that cover smaller employers. In Washington, D.C., for instance, the District of Columbia Human Rights Act applies to employers with only one employee and prohibits bias that’s based on sexual orientation, gender identity, marital status, and personal appearance, among other categories.

What’s more, Title VII protects LGBTQ+ employees because it bans discrimination based on sex. Courts may find that the same logic applies to local laws that prohibit sex discrimination, even if they don’t explicitly mention sexual orientation or gender identity. Ask an employment lawyer.

Is gender expression the same as gender identity, legally speaking?

Few courts have spoken in exactly these terms, but our firm’s view is that gender expression is presumptively protected by any law that protects gender identity, and vice versa. “Identity” refers to a person’s vision of themself, while “expression” is more outward-facing and includes things such as clothing, hairstyle, speech, makeup, and so on. Discrimination based on gender expression has arguably been illegal under Title VII since at least 1989, when the Supreme Court ruled in Price Waterhouse v. Hopkins that employees could sue if they were penalized for failing to conform to gender stereotypes. The court’s 2020 decision in Bostock is really just an extension of this logic, explicitly applying it to transgender employees.

What if I face anti-LGBTQ+ bias before I’m hired — in a job interview, for instance?

Anti-discrimination laws such as Title VII forbid bias in hiring, and employers shouldn’t be quizzing applicants or expressing negativity about their sexual orientation or gender identity, either directly or in code. For instance, an interviewer shouldn’t make loaded comments to an LGBTQ+ candidate such as:

• “We’re a traditional, family-friendly company. Are you sure you would really fit in?”
• “And which bathroom would you plan to use at work?”
• “We don’t care what you do in your personal time, but at the office we expect you to keep things professional.”

If you hear anything like that, make a note of it either during or immediately after the interview. Consider asking the person to repeat the comment; they may back off. Bias in hiring is often silent, however, and employers often pretend they had other reasons for hiring a competing applicant — or don’t bother explaining it at all.

What should I do if I’m facing anti-LGBTQ+ harassment or discrimination at work?

First, make a record of the problem. Keep contemporaneous notes, including the names of anyone who witnessed a workplace incident. Don’t suffer quietly: Discuss the matter with allies who can offer advice and help. Don’t rely on legal advice from anyone who’s not a practicing lawyer, however.

Next, determine your employer’s official policy for reporting such behavior. Follow the process in good faith, making a report for each separate event. If you fear that things will go badly, consult with a lawyer beforehand. In general, your company should address the problem promptly and protect you from blowback — and if it doesn’t, you may have additional claims.

Finally, if the problem doesn’t resolve itself, talk to an employment attorney or perhaps your union representative, if you have one. Be aware of deadlines for legal action: If you work for the federal government, for instance, your rights may expire if you don’t make a complaint to your EEO counselor within 45 days of the latest incident.

If I’m wrongfully terminated because of my sexual orientation or gender identity, what can a court do?

It depends on which law has been violated. In general, anti-discrimination statutes aim to make you “whole” — that is, to restore you to the situation you’d be in without any discrimination. Under Title VII, for instance, a court could award you:

• Reinstatement;
• Back pay;
• Front pay;
• Attorney fees and other litigation costs; and
• Other damages, including for emotional harm

In egregious cases, private-sector employees also could claim punitive damages. Similar remedies are available under state and local laws, with exact details depending on the jurisdiction. The same remedies are generally available for non-firing discrimination, too.

One big difference between Title VII and some local laws: The federal law puts a cap on non-economic damages — anywhere from $50,000 to $300,000, depending on the employer’s size. For that reason, among others, an employment lawyer may advise you to file a lawsuit with both federal and state claims, or even to act under local law alone.

If Title VII is available to me, why wouldn’t I use it in an LGBTQ+ bias case?

There could be a lot of reasons, depending on your state. For one thing, the Title VII process requires an initial attempt to resolve the matter internally, followed by an EEOC investigation that could last six months or more before you can file a complaint in court. Some local laws don’t have such an “administrative exhaustion” requirement, while others may have a process that’s less demanding, allowing faster action.

Local laws also may have longer filing deadlines than Title VII, and many have a lower standard of causation than the federal law, especially for retaliation claims. That makes cases easier to win. And, as noted above, state laws may offer greater damages.

In general, an employment attorney may advise you to participate in the Title VII process regardless — but then to consider going to court with only state-level claims. Depending on the jurisdiction, a local law may be more favorable than Title VII on every single count, and a local-only filing can ensure that the case doesn’t get shifted into federal court. That’s an advantage in Virginia, for example, because Virginia discrimination cases are likelier to reach a jury if they remain in state court. There may be other procedural advantages and differences, too.

Finally, local laws may offer additional causes of action that could be easier to prove in some circumstances. As an example, some states ban discrimination that’s based on marital status. If your employer fired you immediately after a same-sex wedding but had shown no other indications of anti-LGBTQ+ bias, it might be possible to win a case on the marital claim alone.

Overall, even though Title VII is more “famous” it’s not always the best tool. You may have no choice, however: If you’re a federal government employee, for example, Title VII may be your only option, as state law likely doesn’t protect you.

I’m considering transitioning at work. What are my legal protections?

Under Title VII and other laws, an employer cannot discriminate against you because you don’t present a stereotypical cisgender appearance. One of the plaintiffs in the Supreme Court cases that were decided in 2020, Aimee Stephens, was fired after she announced that she planned to transition at work; the justices ruled definitively that her employer had acted illegally.

In an ideal world your employer will work closely with you to ensure a smooth, open, and welcoming transition during which your colleagues start using your proper pronouns and chosen name, if they’ve changed. If anyone shows any hostility, however, document each instance and, if merited, discuss with your manager, your HR person, or an attorney.

I’m a trans woman. Do I have a legal right to use the women’s bathroom at work?

In our firm’s opinion, Title VII and other laws say that you do. However, the Supreme Court explicitly declined to answer this question in its Bostock decision, so the official legal situation hasn’t changed much since our examination of bathroom policies back in 2017. According to the U.S. Department of Labor, employers should give all employees access to a bathroom that corresponds to their gender identity, but this isn’t yet an enforceable federal requirement.

Meanwhile some states have better regulations or stronger guidance, but this area of law remains in flux; different courts have produced different outcomes. Work remains to be done.

I’m a trans woman. If my employer won’t let me use the women’s bathroom, is that evidence of discrimination?

While we can’t say for sure that it’s illegal as a standalone matter — though we think it is — preventing employees from using the proper bathroom can certainly be cited as evidence of discrimination. Document it as you’d document other such evidence, and an employment lawyer can advise you on the strength of your case.

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This page was updated in May 2023 by a TELG attorney.