Sexual-Orientation-Based Employment Discrimination: States' Experience With Statutory Prohibitions Since 1997

OGC-00-27R: Apr 28, 2000

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Pursuant to a congressional request, GAO followed up on its previous report on state laws prohibiting sexual-orientation-based employment discrimination, focusing on: (1) characteristics, coverage, and exclusions of any new state laws; and (2) the enforcement experience of the states since GAO's last report.

GAO noted that: (1) state statutes define sexual orientation as heterosexual, homosexual, or bisexual, and generally include both actual and perceived sexual orientation; (2) coverage provided by the state statutes is not universal--whether an employer is subject to the law depends on the number of workers employed and the nature of the work; (3) all the state laws cover both private and public employment, all exempt religious organizations, and most exempt nonprofit organizations; (4) state laws designate a state agency to handle discrimination complaints, but differ concerning the circumstances under which complainants may seek judicial enforcement; (5) state laws protect complainants and witnesses from retaliation; (6) all state statutes provide a range of remedies, which can include back pay awards, punitive damages, or civil penalties; (7) states are split on the use of quotas or preferential treatment: (a) 5 of the state statutes prohibit quotas or preferential treatment; (b) 2 state statutes permit preferential treatment; and (c) 5 state statutes are silent; (8) of the 12 state statutes prohibiting discrimination in employment on the basis of sexual orientation, 3 have been in effect for over 10 years; (9) the earliest, in the District of Columbia, was enacted 23 years ago; (10) 7 laws date from between 1991 and 1995; (11) the most recent is Nevada's, which took effect in October 1999; (12) overall, the states' data show that relatively few complaints of discrimination in employment on the basis of sexual orientation have been filed each year, whether measured in absolute numbers or as a percentage of all employment discrimination complaints; (13) the data do not reveal any obvious growth trend in the number of complaints, nor is there evidence of large numbers of complaints filed immediately after a sexual orientation protection statute takes effect; (14) in 1997, GAO found few decisions by courts under the states' laws prohibiting discrimination in employment on the basis of sexual orientation, and that has not changed in the intervening time; (15) a current search of standard sources for the 12 states found few court rulings under the states' laws prohibiting discrimination in employment on the basis of sexual orientation since 1997; and (16) follow-up discussions with state officials responsible for enforcing the prohibition against employment discrimination confirmed that since 1997, a small number of lawsuits have been filed in court under their employment discrimination statutes.