By Katie McAnallen

With the U.S. Supreme Court’s landmark ruling in Obergefell v. Hodges striking down state laws that defined marriage as being between men and women, and legalizing same-sex marriage, the focus of LGBT issues is likely to shift to sexual orientation- or gender identity-based discrimination in employment.

In his majority opinion, Justice Anthony Kennedy said that same-sex couples ask for equal dignity in the eyes of the law, and that the Constitution grants them equal access to marriage as given to heterosexual couples. 

The basis for protections against illegal employment discrimination based on protected class, however, is not in the Constitution. It is Title VII of the Civil Rights Act of 1964 that makes it illegal for employers to discriminate against employees on the basis of race or gender. 

Since federal law does not provide protections for LGBT employees in employment, it is up to the states to decide whether to provide protections in their own employment discrimination acts, which are usually found in state civil rights statutes.

• Currently, 17 states and Washington, D.C., have fully incorporated sexual orientation and gender identity into their employment discrimination statutes and prohibit sexual orientation and gender identity discrimination by both public and private employers. 
• Five states and Puerto Rico prohibit just sexual orientation discrimination for public and private employers. 
• Four states prohibit sexual orientation discrimination for public employers by executive order.
• Five states prohibit discrimination based on sexual orientation and gender identity by executive order. 
• Missouri protects employees of the executive branch from sexual orientation discrimination.
• New York prohibits gender identity discrimination for public employers.

During the 2015 legislative session, 11 states proposed legislation to add protections against sexual orientation and gender identity discrimination to their civil rights statutes, six of which would include both public and private employers. Four of the proposed bills failed, and seven are currently being considered. New York has proposed legislation to add gender identity protections to its civil rights statute.

Utah is the most recent state to add these protections to its employment discrimination statute in March of 2015.

Katie McAnallen is a legal intern at NCSL.

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