If sexual orientation—and gender identity and gender expression—are not on the list of protected characteristics (race, color, religion, sex, national origin, disability, or age), how do such cases make it to trial? It's because claims say the discrimination was "because of sex," explains Cohen.

Cohen and associate Marc Scheiner made their remarks at the recent SHRM Legal and Legislative Conference in Washington, DC. Both are associated with the WolfBlock law firm in Philadelphia.

Brief Definitions

Sexual orientation denotes one's physical and emotional attraction to people of a certain sex.

Gender identity denotes the sex with which you identify, the sex that you see yourself as.

Gender expression is the outward expression of your gender identity. If gender expression doesn’t match with one’s "assigned sex" (identification by others as male or female based on physical/genetic sex), that's transgender.

Courts are also offering some protections based on sexual stereotyping and gender nonconformity ("not behaving like a 'man' or 'woman' should"), said Scheiner. Again, these charges all fall under the generic idea of "because of sex."

State Laws Barring Sexual Orientation Discrimination

Twenty states and the District of Columbia prohibit discrimination on the basis of sexual orientation in private and public employment, Cohen notes. They are:

• California, Colorado, Connecticut, the District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.

Twelve additional states prohibit such discrimination in public employment, he adds. They are:

• Alaska, Arizona, Delaware, Indiana, Kansas, Kentucky, Louisiana, Michigan, Montana, Pennsylvania, Ohio, and Virginia.

State Laws Barring Gender Identity Discrimination

Twelve states and the District of Columbia prohibit gender identity discrimination in private and public employment, Cohen says. They are:

• California, Colorado, the District of Columbia, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Rhode Island, Oregon, Vermont, and Washington. Hawaii prohibits discrimination on the basis of gender identity in housing and public accommodations.

In addition, nine states have court rulings, commission agency rulings, or executive orders providing some protection against gender identity discrimination. They are:

• Connecticut, Florida, Hawaii, Indiana, Kansas, Massachusetts, New York, Ohio, and Pennsylvania.

And Don't Forget Local Laws

Finally, Cohen notes, in the 30 states without nondiscrimination laws relating to sexual orientation and/or gender identity there are more than 170 local municipalities that provide such protections.

Multiple States

Of course, there is a further complication for employers having employees in multiple states with different regulations. What is the best way to handle that? Scheiner says the easiest response is to give everyone the protections that are required by the state that offers the most protection.

I'll Tell You a Secret …

The first step in dealing with these issues is to develop a policy, Scheiner says. "But," he adds, "I'm going to tell you a secret—your employees aren't reading your policies."

Where does that leave you? With the need to conduct training. In the next Advisor, we'll look at awareness training, and review a unique program for small HR departments.

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