If you’ve been fired, harassed, or treated unfairly at work because of your sexual orientation or gender identity, federal law now protects you. The Supreme Court’s landmark 2020 decision in Bostock v. Clayton County established that LGBTQ+ discrimination is sex discrimination prohibited by Title VII of the Civil Rights Act.
Quick Answer
Yes, you can sue your employer for discrimination based on sexual orientation or gender identity under Title VII of the Civil Rights Act. Since the Supreme Court’s Bostock decision, firing or discriminating against employees for being gay, lesbian, bisexual, or transgender is illegal sex discrimination. You must file a charge with the EEOC before suing. Many states also have additional protections.
The Bostock Decision: What It Means
What the Supreme Court Ruled
In Bostock v. Clayton County (2020), the Supreme Court held by a 6-3 vote that Title VII’s prohibition on sex discrimination includes:
- Sexual orientation discrimination – Discriminating against someone for being gay, lesbian, or bisexual
- Gender identity discrimination – Discriminating against someone for being transgender
The Court’s Reasoning
The Court explained that you cannot discriminate against someone for being gay or transgender without considering their sex. An employer who fires a man for being attracted to men, but not a woman for the same attraction, is discriminating based on sex.
Who’s Covered
| Covered | Not Covered by Title VII |
|---|---|
| Employers with 15+ employees | Employers with fewer than 15 employees |
| Private sector employers | May still be covered by state/local laws |
| Federal government | Religious exemptions may apply |
| State and local governments |
What Conduct Is Prohibited?
Discrimination in Employment Decisions
Employers cannot discriminate based on sexual orientation or gender identity in:
- Hiring: Refusing to hire because you’re LGBTQ+
- Firing: Terminating employment for being gay or transgender
- Promotions: Denying advancement based on LGBTQ+ status
- Pay: Paying LGBTQ+ employees less
- Benefits: Denying benefits to same-sex spouses
- Job assignments: Giving less desirable work based on identity
- Training: Excluding from training opportunities
Harassment
Harassment based on sexual orientation or gender identity is illegal when:
- It’s severe or pervasive enough to create a hostile work environment
- It results in an adverse employment action
Examples include:
- Slurs or offensive comments about sexual orientation
- Mockery of gender expression or identity
- Deliberate and repeated misgendering
- Sexual jokes or comments targeting LGBTQ+ employees
- Threatening behavior based on identity
Retaliation
It’s illegal to retaliate against employees who:
- Report LGBTQ+ discrimination
- Participate in discrimination investigations
- File EEOC charges
- Oppose discriminatory practices
Transgender-Specific Issues
Protected Activities
Employers cannot discriminate against transgender employees for:
- Transitioning (social, medical, or legal)
- Expressing gender identity inconsistent with sex assigned at birth
- Not conforming to gender stereotypes
Bathroom and Facility Access
While Bostock explicitly did not address bathroom access, many courts and the EEOC have found that denying transgender employees access to facilities consistent with their gender identity constitutes discrimination.
Name and Pronoun Usage
Persistent, deliberate misgendering or refusal to use an employee’s correct name may contribute to a hostile work environment claim.
State and Local Protections
States with Explicit LGBTQ+ Employment Protections
Many states had protections before Bostock and may offer additional remedies:
- California, New York, Illinois, Massachusetts, Washington, and others
- Some cover smaller employers than Title VII
- Some provide greater damages or different procedures
States with Limited Protections
Even in states without explicit LGBTQ+ laws, Bostock provides federal protection for employees of covered employers.
Local Ordinances
Many cities and counties have their own non-discrimination laws that may provide additional protections.
Filing a Discrimination Claim
Step 1: File with the EEOC
Before suing, you must file a charge with the EEOC:
- Deadline: 180 days (300 days if your state has a fair employment agency)
- Method: Online portal, in person, or by mail
- Cost: Free
Step 2: Investigation
The EEOC will:
- Notify your employer of the charge
- Investigate the allegations
- May offer mediation
- Issue findings
Step 3: Right to Sue
After investigation, you’ll receive either:
- EEOC lawsuit on your behalf (rare)
- A “right to sue” letter permitting you to file in court
You can request a right to sue letter after 180 days.
Step 4: File Lawsuit
You have 90 days from receiving the right to sue letter to file in federal court.
Evidence to Support Your Case
Direct Evidence
- Statements by supervisors or managers showing discriminatory intent
- Emails or texts with discriminatory language
- Written policies that discriminate
- Recorded conversations (where legal)
Circumstantial Evidence
- Timeline showing adverse action after coming out or transitioning
- Different treatment compared to non-LGBTQ+ employees
- Pattern of discrimination against LGBTQ+ employees
- Pretextual reasons for adverse actions
Documentation You Should Keep
- Performance reviews and work records
- All communications about employment decisions
- Witness information
- Timeline of events
- Records of complaints to HR
Damages You Can Recover
Compensatory Damages
- Back pay: Lost wages from termination or demotion
- Front pay: Future lost earnings
- Benefits: Lost health insurance, retirement contributions
- Emotional distress: Mental anguish, humiliation
Punitive Damages
When employer acted with malice or reckless indifference. Subject to caps:
| Employer Size | Maximum Compensatory + Punitive |
|---|---|
| 15-100 employees | $50,000 |
| 101-200 employees | $100,000 |
| 201-500 employees | $200,000 |
| 500+ employees | $300,000 |
Other Remedies
- Reinstatement: Getting your job back
- Promotion: If denied due to discrimination
- Policy changes: Injunctive relief requiring non-discrimination
- Attorney fees: If you prevail
Religious Exemptions
Religious Organizations
Religious employers may have exemptions allowing them to hire based on religion. However, this exemption’s scope for LGBTQ+ discrimination is contested and evolving.
Religious Objections
Some employers claim religious objections to employing LGBTQ+ individuals. Courts are still determining how to balance religious freedom with employee protections.
Bostock explicitly did not decide how religious exemptions apply to LGBTQ+ discrimination cases.
Frequently Asked Questions
Do I have to be “out” at work to be protected?
No. You’re protected from discrimination based on your actual or perceived sexual orientation or gender identity, whether or not you’ve disclosed it at work.
Can I be fired during my probationary period for being LGBTQ+?
No. Probationary employees have the same discrimination protections. If you were fired because of your LGBTQ+ status, it’s illegal regardless of how long you’ve worked there.
What if my employer claims another reason for firing me?
Employers often provide alternative explanations. You can show these reasons are pretextual (excuses) by demonstrating inconsistencies, different treatment of others, or timing connected to your LGBTQ+ status becoming known.
Can I sue if I’m harassed by coworkers, not managers?
Yes, if the employer knew or should have known about the harassment and failed to take corrective action. Employers are responsible for maintaining a non-hostile work environment.
What about discrimination in customer-facing roles?
Customer preference is not a defense. Employers cannot discriminate based on how customers might react to LGBTQ+ employees.
Is my employer required to provide transgender health benefits?
This is an evolving area of law. Some courts have found that excluding transition-related care from health plans constitutes discrimination. The answer may depend on your jurisdiction.
When to Contact a Lawyer
Consult an employment attorney if:
- You’ve been fired, demoted, or disciplined after revealing your LGBTQ+ identity
- You’re experiencing harassment based on sexual orientation or gender identity
- Your employer denies benefits to your same-sex spouse
- You’re transgender and facing bathroom access or dress code issues
- You’ve reported discrimination and face retaliation
- Your deadline to file an EEOC charge is approaching
Many employment attorneys offer free consultations and take discrimination cases on contingency—you pay nothing unless you win.
This article provides general information about LGBTQ+ employment discrimination in the United States. Laws are evolving in this area. Consult with a qualified employment attorney for advice specific to your situation.
