LGBTQ employment discrimination ordinances are caught in a legal lurch

Officials for various cities in western Kentucky are debating whether local laws should protect LGBTQ employees and job applicants against discrimination based on their sexual identity or sexual orientation, according to the Messenger-Inquirer.

So-called fairness ordinances are currently in effect in multiple Kentucky cities, including Covington, Danville, Frankfort, Lexington, Louisville, Maysville, Midway, Morehead, and Paducah.

Fairness ordinances have recently been discussed or considered in Bowling Green, Henderson, and Owensboro. Opponents, however, have argued that there’s no evidence that such discrimination is occurring, that such a restriction restricts religious freedom, and that counties are the better entities to enact the ordinances.

Federal law is in flux

Employment protections for LGBTQ people are also up for debate at the federal level. The Equal Employment Opportunity Commission (EEOC) and multiple federal courts, most predominantly the 7th Circuit and 2nd Circuit, have held that discrimination on the basis of sexual orientation is prohibited sex discrimination under Title VII of the Civil Rights Act of 1964. The 6th Circuit, which encompasses Ohio, Kentucky, Tennessee, and Michigan, has ruled that discrimination based on sexual orientation is not prohibited by Title VII. But, the 6th circuit has recently ruled that discrimination on the basis of transgender status is prohibited under Title VII.

As you can see from the conflicting rulings across the country, there is no comprehensive decision related to LGBTQ employment discrimination. We recently wrote about three cases before the U.S. Supreme Court that will decide whether Title VII’s prohibition on sex discrimination in the workplace extends to discrimination on the basis of sexual orientation and transgender status. Until the Supreme Court decides to rule on these cases, the other courts are left in a lurch.

Kentucky law is likewise in flux

Local fairness ordinances are significant in Kentucky because there is no state-level protection for LGBTQ individuals in private employment. The Kentucky Civil Rights Act only protects against employment discrimination and harassment by employers with at least eight employees based on these classifications:

  • Race
  • Color
  • Religion
  • Familial status
  • National origin
  • Sex
  • Disability (instead of applying to employers with 8 or more workers, only applies to those with at least 15 employees)
  • Retaliation (by an employer against someone for asserting his or her civil rights to freedom from illegal discrimination)

An executive order signed by a previous governor, however, does protect Kentucky government employees against LGBTQ discrimination.

Until the legal debate over LGBTQ employment discrimination is resolved, an experienced employment law attorney can advise employers, employees and job applicants about whether any local ordinance applies in their place of employment (or of job application) to require protection against discrimination based on LGBTQ status.


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