Gay and Lesbian discrimination in Texas: which options does a worker have?

About 429,000 workers who identify as lesbian, gay, bisexual, or transgender live in Texas. According to the Williams Institute, there are about 666,000 LGBT adults in the state, including those working. Discrimination against LGBT employees is prevalent in Texas and across the country, with about 21% of those LGBT employees responding to a 2013 national survey that they’d been treated unfairly by an employer in terms of their hiring, pay, or promotions.

The same or even more discrimination in the workplace has been reported by transgender people. About 79% of respondents from Texas in the largest survey of transgender workers to date reported they’d experienced mistreatment on the job. The discrimination extends to disparity in pay. The median income of men in same sex couples in Texas has been reported as 9% less than the median income of men in opposite sex marriages.

Unfortunately, Texas doesn’t have a state law that explicitly protects these workers from discrimination based on their sexual orientation or gender identity. There are four cities that do provide protection in the form of ordinances against gender identity and sexual orientation discrimination in public and private sector jobs. Seven more cities protect their own local government workers from discrimination on these grounds. Still, that leaves about 86% of Texas employees without any state or local protection for being gay, lesbian, bisexual, or transgender. Therefore, remedies for workers who face discrimination on these grounds are limited.

These conditions are against public opinion in Texas. In a 2011 poll, 73% of those polled stated that Congress should pass a federal law providing explicit protection for sexual orientation and gender identity, and about 79% of Texans believe that LGBT people experience moderate to severe discrimination in the state.

According to the Williams Institute, adding sexual orientation and gender identity to the existing state law would result in about 202 more discrimination or harassment complaints being filed with the Texas Workforce Commission Civil Rights Division on an annual basis. They wouldn’t add significant costs.

In the four cities that have ordinances protecting LGBT workers, they only apply to employers with 15 or more employees, with some limited exceptions. This is little more protection than what is provided under Title VII of the Civil Rights Act of 1964, and none of the ordinances specify which remedies could be awarded to employees who experience sexual orientation or gender identity discrimination.

Title VII also applies to employers across the country with 15 or more employees. However, both Title VII and the city ordinances leave those working for smaller employers without any recourse in the event that they are treated worse than their heterosexual counterparts in terms of hiring, firing, promotions, job assignments, training, mentorship, or harassment. Moreover, Title VII doesn’t provide explicit protection for LGBT employees anywhere in the country.

Instead, the EEOC has provided guidance that gender identity and sexual orientation discrimination are types of sex discrimination prohibited by Title VII. Courts interpret Title VII differently, so the law varies in its protection of LGBT plaintiffs in Texas and elsewhere. You may be able to bring a Title VII claim if you work for an employer with 15 or more employees and face an adverse employment action based on your sexual orientation or gender identity.

It can be important to obtain representation from an experienced employment lawyer when you have a dispute with your employer regarding discrimination or other matters. Contact us at (214) 528-6500 or via our online intake form.

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