Sexual Orientation Discrimination

Few groups in the United States are as frequently subjected to discrimination as members of the lesbian, gay, bisexual and transgender (LGBT) community. While our society generally frowns upon most forms of discrimination, such as racism, discrimination based on sexual orientation still occurs openly and unabashedly across the country. Indeed, federal statutes do not even directly address this type of discrimination, leading many employers to assume that it is acceptable. While the EEOC takes the position that the federal prohibition against gender discrimination includes transgender, and some federal courts have agreed, the federal law as applied in New York is not yet clear.

Fortunately for residents of New York, both New York state and local human rights laws strongly and directly condemn and prohibit sexual orientation discrimination and harassment in the workplace. All LGBT workers in New York state who have suffered on-the-job discrimination have recourse, and the recourse for transgender persons is even clearer in NYC. Our New York employment discrimination lawyers at Joseph & Kirschenbaum LLP are standing by to help them.

Although some courts have suggested that private sector discrimination based on sexual orientation may be considered a type of gender discrimination, it is not clearly or directly prohibited by the federal Civil Rights Act or any other federal employment discrimination law currently on the books. While attempts have been made to pass such legislation, proponents have found little traction in a deeply divided and deadlocked Congress.

Fortunately, both the New York State Human Rights Law and the NYC Human Rights Law include sexual orientation in their prohibited bases for discrimination. This means that sexual orientation discrimination in New York receives the same treatment as discrimination based on sex, race, age or national origin under state law:

• Employers cannot refuse to hire based on sexual orientation.
• Employers cannot terminate employees once they become aware of their sexual orientation.
• Employers cannot offer substandard terms and conditions of employment because of sexual orientation.
• Employers cannot harass, mock or badger employees due to their sexual orientation.

The same protections are available in New York state for transgender individuals, albeit not as explicitly as they are in NYC.

New York's state and local discrimination laws also bar the creation and the failure to remedy a hostile work environment. Employers may be strictly liable for discrimination and harassment perpetrated by supervisors—and may also be liable for such action by lower level employees if there is evidence that the employer did not address the issue.

New York State’s and New York City’s prohibitions against employment discrimination based on LGBT status are strong, but include an important exception. The New York State Human Rights Law allows religious organizations and the charities and schools they operate to take, “such action as is calculated . . . to promote the religious principles for which it is established and maintained.” While the exact meaning of this provision has been often disputed in the courts, it has been used to argue that schools and other organizations operated by religious groups that oppose homosexuality can refuse to hire based on sexual orientation. However, an experienced New York City employment discrimination lawyer should closely review any claims by employers that this provision justifies discrimination of an LGBT employee or recruit.

The law of employment discrimination based on LGBT status is likely to undergo significant changes in the coming years. At the law firm of Joseph & Kirschenbaum LLP, our New York employment discrimination lawyers remain apprised of all the latest developments. If you feel you have been denied employment, terminated or harassed at work because of your LGBT status, our lawyers can listen to your story and determine if you have a legal claim. Contact us today to schedule a no-cost initial consultation. We are available by phone at 212-688-5640. We can also be reached online. Se habla espanol.