This fact sheet covers the rights of LGBT employees who work for the government.
The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution prohibits the government from purposefully discriminating against someone without adequate justification on the ground that he or she belongs to an identifiable class of people. A public employee can establish a violation of his or her rights to equal protection if the employee can show that he or she was subjected to adverse treatment when compared with other similarly situated employees and that that treatment was motivated by an intention to discriminate on the basis of improper considerations. Many courts have held that a public employee has a claim under federal Equal Protection guarantees if he or she is discriminated against because of sexual orientation.1
Public employees also have invoked the First Amendment to protect a right to “come out” publicly. It has been held that a public school violates the First Amendment in ordering a teacher not to make comments about her sexual orientation.2 Lambda Legal has successfully defended the right of teachers to discuss gay issues in the classroom.3 This area of the law is a little more complicated because the courts engage in a balancing of the public employee’s expressive rights against the interests of the government employer “in promoting the efficiency of the public service it performs through its employees.”4 Lambda Legal also has vindicated the First Amendment rights of public employees to associate with gay men and lesbians.5
Federal Statutory Law
Federal law prohibits discrimination based on sex in public employment.6 This law prohibits discrimination based on sex stereotypes.7 Thus, if an LGBT person is discriminated against for failure to conform to the stereotypes about his or her gender, the employee should have a viable claim under federal law.
Protections for Federal Employees
Executive Order 13087 expressly bans sexual orientation discrimination in the federal workplace. The Office of Special Counsel has the authority to investigate “Prohibited Personnel Practices,” which include taking action against employees based on conduct that does not adversely affect workplace performance, acting in a way that violates merit system principles, or giving a preference not authorized by law.8 Each of these provisions should apply to sexual orientation discrimination.
State Law Protections
The following states have specifically listed sexual orientation in their law prohibiting discrimination against public employees: Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, New Jersey, New Mexico, New York, Nevada, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and Wisconsin. Most of these provisions cover “sexual orientation” generally, prohibiting discrimination against heterosexual, bisexual, gay and lesbian employees. Many provisions cover perceived sexual orientation, so that someone discriminated against because he or she is perceived to be gay can state a claim, even if he or she is not gay or is not “out.” Additionally, some states and municipalities prohibit marital status discrimination, which may assist gay and lesbian public employees. There also may be state or local laws that protect political activity or expression, including “coming out.”9 Discrimination can take a variety of forms; Lambda Legal has won victories against school districts that tried to transfer students out of the classrooms of gay teachers.10 Additionally, Lambda Legal prevailed on behalf of a teacher’s right to bring a claim of pervasive sexual orientation harassment at her school.11
It also may violate the constitution of the state to discriminate against public employees based on their sexual orientation, or to take action against them for being openly gay.12
The following states prohibit gender identity discrimination against public employees: California, Illinois, Kentucky, Maine, Minnesota, New Mexico, Pennsylvania and Rhode Island (and by court or administrative rulings in Connecticut, Florida, Hawaii, Massachusetts, New Jersey, New York and Vermont). Also, transgender employees who suffer discrimination often may invoke laws against sex discrimination in employment.
Union contracts that include sexual orientation and gender identity in their non-discrimination clause provide expanded protections for LGBT employees. If a contract lacks these protections, LGBT members and allies should try to get involved in the negotiations process and advocate for these additions in the next contract.
1Miguel v. Guess, 112 Wn. App. 536, 51 P.3d 89 (2002) (lesbian nurse had equal protection claim under federal and state constitutions against public hospital and individual physician for adverse job actions taken due to her sexual orientation); Quinn v. Nassau County Police Dept. 53 F. Supp. 2d 347, 350 (E.D.N.Y. 1999) (gay police officer had equal protection claim against department and staff for condoning anti-gay harassment by coworkers and supervisors); Emblen v. Port Authority of New York, 2002 U.S. Dist. LEXIS 5537 at *22-25 (S.D.N.Y. 2002) (non-gay police officer stated equal protection claim based on persistent anti-gay harassment by coworkers who mis-perceived him as gay); Lovell v. Comsewogue School Dist., 214 F. Supp. 2d 319 (E.D.N.Y. 2002) (lesbian teacher stated equal protection claim against school district and principal for failing to take action against anti-gay harassment of teacher by students); Glover v. Williamsburg Local School Bd., 20 F. Supp. 2d 1160 (S.D. Ohio 1998) (school district violated teacher’s equal protection rights when it fired him after he was seen holding hands with male partner at school holiday party).
2 Weaver v. Nebo School Dist., 29 F. Supp. 2d 1279 (D. Utah 1998).
3 See Plymouth County Education Association v. Plymouth-Canton Board of Education (American Arbitration Association) (school district violated academic and First Amendment freedoms when it ordered two gay teachers to dismantle displays commemorating Gay and Lesbian History Month) (described at http://www.lambdalegal.org/cases/brief.html=928). For information concerning a public school teacher’s right to be out at work, see: http://www.lambdalegal.org/cases/brief.html=382.
4 Pickering v. Board of Education, 391 U.S. 563, 568 (1968).
5See Ramos Padro v. Commonwealth of Puerto Rico, 100 F.Supp.2d 99, 101 (D.P.R. 2000).
642 U.S.C. § 2000e-16; 42 U.S.C. § 2000e(f); Fitzpatrick v. Bitzer, 427 U.S. 445, 449 n.2 (1976).
7 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
8 5 U.S.C. § 1212; 5 U.S.C. § 2302(b)(6), (10), (12).
9 See e.g., Cal. Labor Code §§ 1101-02.
11 Murray v. Oceanside Unified School Dist., 79 Cal.App.4th 1338, 1357 (2000).
12 E.g. Gay Law Students Assn. v. Pacific Tel. & Tel. Co., 24 Cal.3d 458, 467, 595 P.2d 592, 597 (1979).