Is Sexual Orientation a Protected Class?

What Is Discrimination Based on Sexual Orientation

Sexual discrimination is the unjust or prejudicial treatment of an individual, based on their sexual orientation. Examples include being treated unfairly for being gay, lesbian, or bisexual.

What About Gender Identity?

Discrimination based on gender expression or gender identity is also prohibited by federal law. An example of how people with differing gender identities may face prejudice is bathroom use. An individual may have been assigned male sexuality at birth but identifies as a woman and may want to use the women’s bathroom. Bathrooms have become a hot-button issue in the fight for gender identity rights.

Understanding the Terminology

If you’re not sure what the differences in the terms are, it may be a good idea to review how the Human Rights Campaign defines sexual orientation and gender. It may give you a better grasp of what constitutes discrimination and what groups may be affected:

Sexual orientation: An inherent attraction to others. The attraction may be of the same sex, opposite sex, or both.
Gender identity: How one perceives themselves, which may be different than their sex assigned at birth.
Gender expression: The external appearance of a person that expresses their gender identity.
Transgender: A term for people whose gender expression and/or identity is different from their birth sex. Being transgender does not imply sexual orientation. As with all individuals, transgender people may identify as straight, gay, lesbian, bisexual, and more.

Federal Laws on Sexual Orientation Discrimination

There are federal laws to protect against sexual orientation and gender expression in the following categories.

Employment

The U.S. Equal Employment Opportunity Commission (EEOC) considers discrimination based on sexual orientation or gender identity as a form of sex-based discrimination. Just as treating someone unfavorably because of their sex is illegal, the EEOC expresses that “discrimination against an individual because of gender identity, including transgender status, or because of sexual orientation, is discrimination because of sex in violation of Title VII.”

The federal employment law and protections apply nationwide regardless of opposing state or local laws. For this reason, discrimination is among the top reasons employees sue their employers. But there’s a caveat — the employer must comply with the regulation if they have 15 or more employees. Small businesses may discriminate and not violate federal employment law.

Housing

There are no formal protections for LGBTQ+ at this time when it comes to private housing. The federal Fair Housing Act is explicit about prohibiting sex discrimination to the following groups:

Disability;
Familial status;
National origin;
Race or color;
Religion;
Sex.

There is no wording in the Fair Housing Act that expands protections to include orientation or gender identity at this time.

Federal housing protections and discrimination laws are different. Landlords with a Federal Housing Administration (FHA) mortgage or who receive funding from the Department of Housing and Urban Development (HUD) are subject to HUD’s Equal Access Rule. It bans sexual orientation or gender identity discrimination.

Education

Title IX of the Education Amendments of the Civil Rights Act of 1972 prohibits discrimination in public schools based on sex. As with some of the wording on other anti-discrimination laws, Title IX does not include any reference to orientation, transgender people, or gender identity. But the federal courts ruled that Title IX protects LGBTQ+ students from discrimination.

Fighting Sexual Orientation Discrimination

If you feel you have been discriminated against because of your sexual orientation, gender identity, or gender expression, consult with an attorney for legal advice. An attorney may find that your rights have been violated.

Be sure to document the incident, including any details you may not find relevant to strengthen your case against a civil lawsuit defense. Any documentation or evidence may be helpful if you choose to file a lawsuit. If the violations were workplace, school, or public housing-related, you may also file a complaint with the appropriate agency.

Filing an EEOC Complaint or Charge

A hostile work environment due to your gender or sexual preferences is legally enforceable if your workplace has 15 or more employees. If the discrimination is workplace-related, you must file a charge with the EEOC before you can sue your employer. You must act promptly — there are strict time limits for filing a charge.

There is a 180-day filing timeline. If a state or local agency enforces a similar state law that prohibits employment discrimination, filing a federal charge is extended to 300 days. There are a few ways to file a charge with the EEOC:

Online: File a Charge of Discrimination through the EEOC public portal.
In-person: Schedule an appointment through the EEOC public portal to visit a local office to file a charge. You will be interviewed about the incident(s) during the appointment. Be sure to bring all supporting documentation.
By telephone: You can’t file a complaint over the phone but you can speak with a representative by calling 1-800-669-4000 to determine if you have a case for filing a complaint.
By mail: If you have less than 60 days to file a charge on time, visit the EEOC Public Portal to start a complaint. You will be given instructions to complete it by mail. Don’t forget to sign your mailed complaint or it won’t be able to be investigated.
File with a local Fair Employment Practices Agency (FEPA): The EEOC has a workshare agreement with certain agencies and your complaint will be filed with both.

Company Policies

Federal laws are not as expansive as they would be for people being discriminated against because of race, religion, or sex. Some employers may have their expansive policies to protect all employees, regardless of sexual preference or expression. Among the companies that have LGBTQ+ equality policies are:

Central Intelligence Agency (CIA);
Charles Schwab;
Coca Cola;
Google;
IBM;
IKEA;
Intuit;
Microsoft;
PayPal;
Uber;
Visa.

Other Laws That May Help

As federal legislation expands, there may be other laws that can fill in for a lack of LGBTQ+ protections. It may be best to get legal help to determine what laws may apply. They may include laws against:

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About the Author

Aaron is a professional legal writer with a B.S. in English Education from Southern Illinois University – Carbondale. He has written, published, and edited thousands of legal articles for RequestLegalHelp, which has connected over 5 million people to legal help in the United States.

With over five years of experience writing thousands of legal articles for law firms across the U.S. and Canada, Aaron specializes in covering federal, state, and city-level legal issues ranging from auto accidents to wrongful terminations. Contact Aaron at [email protected] for article suggestions, collaborations, or inquiries.