Sexual-Orientation-Based Employment Discrimination: State and
Federal Status (19-APR-02, GAO-02-665R).
Three federal statutes make it unlawful for an employer to
discriminate against an employee on the basis of race, color,
religion, sex, national origin, disability, and age. However,
these laws do not cover discrimination on the basis of sexual
orientation. GAO found that 13 states have laws that prohibit
employment discrimination on the basis of sexual orientation.
These laws vary, but they share many significant features.
Maryland's statute is broad in scope, prohibiting discrimination
on the basis of sexual orientation in public accommodations,
housing, and employment. The Employment Non-Discrimination Act of
2001 (1) exempts any religious organization from coverage
regardless of employment activity; (2) contains for the first
time a definition of "employee;" and (3) provides that a state's
receipt of federal assistance for any state program or activity
constitutes a waiver of sovereign immunity to a suit brought in
federal court alleging discrimination in employment of that
program or activity.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-02-665R
ACCNO: A03138
TITLE: Sexual-Orientation-Based Employment Discrimination: State
and Federal Status
DATE: 04/19/2002
SUBJECT: Civil rights law
Civil rights law enforcement
Employment discrimination
Homosexuality
Litigation
State law
California
Connecticut
District of Columbia
Hawaii
Maryland
Massachusetts
Minnesota
Nevada
New Hampshire
New Jersey
Rhode Island
Vermont
Wisconsin
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GAO-02-665R
GAO- 02- 665R Sexual- Orientation- Based Employment Discrimination
United States General Accounting Office Washington, DC 20548
April 19, 2002 The Honorable Edward M. Kennedy The Honorable Joseph E.
Lieberman The Honorable Arlen Specter The Honorable James Jeffords United
States Senate
Subject: Sexual- Orientation- Based Employment Discrimination: State and
Federal Status
Three federal statutes- Title VII of the Civil Rights Act of 1964, the
Americans With Disabilities Act, and the Age Discrimination in Employment
Act- together make it unlawful for an employer to discriminate against an
employee on the basis of characteristics such as race, color, religion, sex,
national origin, disability and age; these laws do not cover discrimination
based on sexual orientation. In 1997 and again in 2000, we reported on state
1 statutes prohibiting discrimination in employment on the basis of sexual
orientation. 2
As the principal sponsors of 107 th Cong., S. 1284, the Employment Non-
Discrimination Act of 2001 (ENDA- 2001), a bill that would prohibit
employment discrimination on the basis of sexual orientation, you asked us
to provide some additional information. Specifically, you asked us for (1) a
current list of states with statutes prohibiting discrimination in
employment based on sexual orientation, (2) a brief description of
Maryland?s new non- discrimination statute in comparison with ENDA- 2001,
and (3) any major differences between ENDA- 2001 and 106 th Cong., S. 1276
(ENDA- 99).
1 Throughout this correspondence, we use the term ?state? to include the
District of Columbia. 2 Sexual- Orientation- Based Employment
Discrimination: States? Experience With Statutory Prohibitions, GAO/ OGC-
98- 7, Oct. 23, 1997; Sexual- Orientation- Based Employment Discrimination:
States? Experience With Statutory Prohibitions Since 1997, GAO/ OGC- 00-
27R, Apr. 28, 2000.
GAO- 02- 665R Sexual- Orientation- Based Employment Discrimination 2 STATES
WITH STATUTES PROHIBITING SEXUAL- ORIENTATION- BASED
EMPLOYMENT DISCRIMINATION Thirteen states currently have laws that prohibit
discrimination in employment on the basis of sexual orientation: California,
Connecticut, Hawaii, Maryland, Massachusetts, Minnesota, New Hampshire, New
Jersey, Nevada, Rhode Island, Vermont, Wisconsin, and the District of
Columbia. 3 The content of these laws varies, but they share many
significant features with one another. 4 Twelve of the state laws were
listed in our 2000 report. 5 Maryland?s statute took effect on October 1,
2001.
MARYLAND NON- DISCRIMINATION LAW SIMILAR TO ENDA- 2001 Maryland?s statute is
broad in scope, prohibiting discrimination based on sexual orientation in
public accommodations, housing, and employment. In many ways, its provisions
relating to employment discrimination are similar to those of ENDA- 2001.
-- The Maryland law defines sexual orientation as ?the identification of an
individual as to male or female homosexuality, heterosexuality or
bisexuality.?
-- ENDA- 2001 defines sexual orientation similarly: ?homosexuality,
bisexuality, or heterosexuality, whether the orientation is real or
perceived.? -- The Maryland law applies to private employers with 15 or more
employees, State
and local public employers, employment agencies, and labor organizations. --
ENDA- 2001 generally applies to private employers with 15 or more
employees, as well as employment agencies and labor organizations. Civilian
federal employees, including the Congress, the White House, and the
Executive Office of the President, are generally covered.
3 Maine enacted a statute in 1997 that was repealed by ballot referendum in
1998. A second statute enacted in 2000 provided it would not take effect
unless endorsed by a majority of those voting in the state?s general
elections; Maine voters defeated that initiative on Nov. 7, 2000.
4 See GAO/ OGC- 98- 7, Oct. 23, 1997, where we summarized provisions of
twelve state statutes (including Maine?s, which was subsequently repealed),
and GAO/ OGC- 00- 27R, Apr. 28, 2000, for a summary of Nevada?s statute. 5
In 2000, we also reported the number of formal complaints of employment
discrimination based on sexual orientation filed in eleven of those states
(Nevada?s statute at the time was too new to have any significant data). The
percentage of sexual orientation complaints relative to total discrimination
complaints filed ranged in 1999 from 0.8 percent to 3.3 percent. We found no
indication that the laws generated a significant amount of litigation.
GAO- 02- 665R Sexual- Orientation- Based Employment Discrimination 3 -- The
Maryland law exempts tax- exempt private clubs, religious organizations for
work connected with its activities, and religious educational institutions.
-- ENDA- 2001 has very similar exemptions. It exempts tax- exempt ?bona fide
private membership? clubs (other than labor organizations), and all
religious organizations, which is defined to include religious educational
institutions.
-- The Maryland law designates the Maryland Commission on Human Rights to
handle discrimination complaints and provides for subsequent judicial
enforcement.
-- ENDA- 2001 provides that the enforcement procedure would be the same as
that now followed for complaints of employment discrimination under Title
VII of the Civil Rights Act of 1964.
-- The Maryland law prohibits retaliation against complainants, witnesses,
and others who assist in an investigation.
-- ENDA- 2001 expressly prohibits both retaliation and coercion. -- The
Maryland law provides a range of remedies, including cease and desist
orders,
affirmative action, reinstatement or hiring, with or without back pay, and
?any other equitable relief? that is appropriate.
-- ENDA- 2001 also permits a range of remedies, including back pay awards,
punitive damages 6 and attorneys? fees. It specifically prohibits quotas and
preferential treatment.
THERE ARE FEW DIFFERENCES BETWEEN ENDA- 99 AND ENDA- 2001 In comparing ENDA-
99 with the current ENDA- 2001, we find the bills are very similar.
Significant among the few differences are:
ENDA- 2001 exempts any religious organization from coverage regardless of
employment activity. Under ENDA- 99, this exemption was not available where
an employee?s duties for a religious organization pertained solely to
activities of the organization that generate unrelated business taxable
income subject to taxation under section 511( a) of the Internal Revenue
Code.
6 Punitive damages are not available in actions against a federal or state
employer.
GAO- 02- 665R Sexual- Orientation- Based Employment Discrimination 4 ENDA-
2001 contains for the first time a definition of ?employee?. This
definition incorporates definitions from the Civil Rights Act of 1964 7 ,
Government Employee Rights Act of 1991 8 , and the Congressional
Accountability Act of 1995. 9
ENDA- 2001 provides that a state?s receipt or use of federal assistance for
any state program or activity constitutes a waiver of sovereign immunity to
a suit brought in federal court alleging discrimination in employment of
that program or activity.
- - - - This report was prepared by Stefanie Weldon, Senior Attorney. Please
call me at (202) 512- 8208 if you or your staff have any questions.
Dayna K. Shah Associate General Counsel
7 42 U. S. C.sect.sect. 2000e( f) and 2000e- 16( a). 8 2 U. S. C. sect.1202( a)( 1). 9 2
U. S. C. sect.1301.
*** End of document. ***