Can you be fired for being gay? Legally, no. Not in the United States at least. While historically employers have used termination as a tool of discrimination against the LGBTQ+ community, it is federally prohibited in the US to fire an employee based on sexual orientation or gender identity regardless of state or local laws, per Title VII of the federal Civil Rights Act.
What is Title VII?
Title VII of the Civil Rights Act of 1964, as amended, safeguards both employees and job seekers against discrimination in employment on the basis of race, color, religion, sex, and national origin.
Title VII was extended to protect employees from discrimination based on sexual orientation or gender identity in June 2020, as a result of the Supreme Court ruling in Bostock v. Clayton County. This means that LGBTQ+ individuals—including transgender folks—across the country can file complaints with the federal Equal Employment Opportunity Commission (EEOC) and seek recourse for employment discrimination through federal courts.
Of the decision, Supreme Court Justice Neil Gorsuch wrote for the majority, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” Conservative activists especially were surprised that the Trump-appointed Justice sided with the court’s liberals in the decision.
Meanwhile, a growing number of states and localities also have these protections, which is important because it ensures LGBTQ+ individuals are protected from employment discrimination at every level of government. These state laws protect LGBTQ+ people from being unfairly terminated, not hired, or discriminated against in the workplace by private employers for their sexual orientation or gender identity.
However, there are some states where there are no explicit prohibitions for discrimination based on sexual orientation or gender identity in the workplace. But because it is federally prohibited, if an LGBTQ+ individual has been discriminated against in one of these states, they can still seek legal recourse federally. Meanwhile, those in states in which laws already protected them from discrimination based on sexual orientation and gender identity have additional legal recourse through federal courts.
The states that do not have explicit prohibitions for discrimination based on sexual orientation or gender identity in state law are:
- 1. Alabama
- 2. Arkansas
- 3. Georgia
- 4. Idaho
- 5. Indiana
- 6. Louisiana
- 7. Mississippi
- 8. Missouri
- 9. Montana
- 10. North Carolina
- 11. Oklahoma
- 12. South Carolina
- 13. South Dakota
- 14. Tennessee
- 15. West Virginia
- 16. Wyoming
Small Businesses
Things become a little more hairy when it’s a business with fewer than 15 employees. Title VII prohibits employment discrimination only by employers with 15 or more employees. This is why the state nondiscrimination laws are important, because many of the state nondiscrimination laws cover smaller employers as well. So, for example, a business with fewer than 15 employees in Missouri could fire someone based on their sexual orientation or gender identity, unless there is a local ordinance (city or council) prohibiting it.
Religious Exceptions
Still, even if someone is in a state where an appeals court has interpreted that Title VII covers sexual orientation and gender identity, there are some religious exceptions that make the situation blurry.
Title VII includes a “religious organization exception” and a “ministerial exception” for religious institutions, which means that the employment discrimination laws wouldn’t apply to them in some circumstances.
The exception states, “religious organizations are permitted to give employment preference to members of their own religion,” but this exception does not “Allow religious organizations otherwise to discriminate in employment on the basis of race, color, national origin, sex, age, or disability.”
The ministerial exception only applies to employees who perform “essential religious functions,” like a pastor or a teacher. Religious organizations are permitted to manage these employees without government intervention.
How Can LGBTQ+ Workers Protect Themselves?
If you are fired on the basis of sexual orientation or gender identity, call the state agency that is responsible for such complaints.
You can also file a discrimination claim with the U.S. Equal Employment Opportunity Commission if you were fired for your sexual orientation or gender identity and take your case to a federal court.
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