Ask Lambda Legal: Out at Work

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May 11, 2012

Q. I just applied for a new job, and am not sure if I should be “out” during the interview process. I don’t think my state protects employees from being discriminated against based on their sexual orientation. Can I be out at my interview or at work without risk of being rejected or fired?

A. It depends. Currently many states lack laws that protect lesbian and gay employees from being treated differently from their co-workers by private employers. And federal statutes do not provide such protection currently. However, the Fourteenth Amendment of the U.S. Constitution contains the Equal Protection Clause, which prohibits public employers from discriminating based on someone’s actual or perceived sexual orientation. A public employee is someone who is employed by a municipality, a county, state, or federal agency, or state college or university or hospital.

Lambda Legal currently is litigating on behalf of Jacqueline Gill, who was denied employment as a professor at Tarrant County College in Texas because it was believed that she was a lesbian. Gill was hired in August 2009 as a full-time temporary professor at Tarrant County College's (TCC's) Northeast Campus in Hurst. At the time, she was informed that it was customary to hire full-time instructors on a temporary basis first, and that teachers who complete the one-year contract term successfully are uniformly hired when the positions are made permanent. Gill received high praise from colleagues, superiors, parents and teachers while at TCC, and had every reason to believe that she would be hired as a professor

Unfortunately, a student who had been disciplined for academic dishonesty by Gill, retaliated by falsely claiming that Gill flirted with girls during class. Gill was then subjected to a lengthy diatribe about "homosexuals" and about how "Texas and Tarrant County College do not like homosexuals" by English Department Chair Eric Devlin. Then, in June 2010, Gill was the only contract teacher who applied for a full time permanent teaching position who was not permitted even to interview, and was not hired. In September 2011, Lambda Legal filed suit on behalf of Gill, claiming that it was a violation of the Equal Protection Clause of the U.S. Constitution to refuse to permit Gill to interview for a permanent teaching position based on their perception that she is a lesbian. The case, Gill v. Devlin and Howell, is ongoing.

Although there are a growing number of state law protections there is currently no federal law that explicitly forbids sexual orientation and gender identity discrimination in private-sector (nongovernment) jobs. It is crucial that Congress pass the Employment Nondiscrimination Act (ENDA) which would provide a clear federal standard prohibiting workplace discrimination for LGBT people.

Workplace discrimination remains the number one complaint among callers to our Legal Help Desk. If you have any questions, or feel you have been discriminated against because of your sexual orientation or gender identity/expression, please contact our Help Desk.