State employment discrimination laws in the United States
In the United States, employment discrimination is prohibited by a collection of state and federal laws, as well as by ordinances of counties and municipalities. Only discrimination based on certain characteristics (protected categories) is illegal.
Employment discrimination or harassment in the private sector is not unconstitutional, because Federal and most State Constitutions do not expressly give their respective government the power to enact civil rights laws that apply to the private sector. Some State Constitutions do expressly afford some protection from public and private employment discrimination, such as Article I of the California Constitution. However, most State Constitutions only address discriminatory treatment by the government, including a public employer.
Absent of a provision in a State Constitution, State civil rights laws that regulate the private sector are generally Constitutional under the "police powers" doctrine or the power of a State to enact laws designed to protect public health, safety and morals. All States must adhere to the Federal Civil Rights laws, but States may enact civil rights laws that offer additional employment protection.
For example, some State civil rights laws offer protection from employment discrimination on the basis of sexual orientation, gender identity or political affiliation, even through such forms of discrimination are not yet covered in federal civil rights laws.
Wisconsin was the first state to ban employment discrimination based on sexual orientation, in 1982, while Minnesota was the first state to ban employment discrimination based on both sexual orientation and gender identity when it passed the Human Rights Act in 1993. Currently, 14 states and the District of Columbia have policies that protect against both sexual orientation and gender identity discrimination in employment: California, Colorado, Hawaii, Illinois, Iowa, Maine, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington in the public and private sector. An additional seven states -- Connecticut, Delaware, Maryland, Massachusetts, New Hampshire, New York, and Wisconsin -- have state laws that protect against discrimination based on sexual orientation only.
Five states have an executive order, administrative order, or personnel regulation prohibiting discrimination against public employees based on sexual orientation and gender identity: Indiana, Kansas, Kentucky, Michigan, and Pennsylvania. Delaware, Maryland, Massachusetts, and New York prohibit discrimination based on gender identity in public employment only. An additional five states prohibit discrimination against public employees based on sexual orientation only: Alaska, Arizona, Missouri , Montana and Ohio. Ohio previously included gender identity, Governor Kasich let this executive order expire in January 2011.
Fifteen other states have laws that have been interpreted to protect transgender persons.
A number of cities and counties have implemented non-discrimination laws. As of April 27, 2011, at least 137 cities and counties prohibit discrimination on the basis of gender identity for both public and private employees. By and large, these city and county laws exist in states that already have a statewide non-discrimination policy for sexual orientation and/or gender identity. However, this is not true in all cases. The following localities have local laws prohibiting discrimination on the basis of gender identity in the absence of a comparable state law:
- Florida: County of Broward, City of Dunedin, City of Gainesville, City of Gulfport, City of Key West, City of Lake Worth, County of Leon, City of Miami Beach, City of Oakland Park, County of Palm Beach, City of Tampa, and City of West Palm Beach
- Georgia: City of Atlanta and City of Decatur
- Indiana: City of Bloomington, City of Indianapolis, County of Marion and County of Monroe
- Louisiana: City of New Orleans
- South Carolina: City of Charleston and City of Columbia
- Texas: City of Austin, City of Dallas, County of Dallas, City of El Paso and City of Fort Worth
- Utah: City of Logan, City of Park City, City of Salt Lake, County of Salt Lake, County of Summit and City of West Valley
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- Cal Civ Code sec. 51
- C.R.S. 24-34-402 (2008)
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- Missouri governor sets new discrimination policy
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- Weiss, Jillian Todd. (July 23, 2007) How many states have law covering gender identity? Transgender Workplace Diversity Blog. Accessed October 20, 2007.
- ""Cities and Counties with Non-Discrimination Ordinances that Include Gender Identity"". Human Rights Campaign. Retrieved May 2, 2011.