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Know Your Rights: Legal Protection for Gay, Lesbian, Bisexual, and Transgendered Education Employees
Prepared by NEA Office of General Counsel, April 2002
National Education Association
1201 Sixteenth Street NW
Washington DC 20036
Foreward
The struggle for full employment rights for gay, lesbian, bisexual, and transgendered education employees is an
ongoing civil rights movement being fought on a number of fronts. Although Congress has not yet enacted a
comprehensive ban on sexual orientation/gender identification discrimination in the workplace, there may be other
sources for possible job protections that apply to your situation. In addition, several recent court decisions suggest
that discrimination on the basis of sexual orientation/gender identification may violate the U.S. Constitution.
This section is intended to provide an overview of recent legal developments, identify the sources for job rights
protections, and offer practical advice about what to do if you believe that you are the victim of sexual
orientation/gender identification discrimination.
But the most important thing to remember is this: if you believe that your employer has discriminated against you
because of your sexual orientation/gender identification, you should contact your local UniServ representative
immediately. In consultation with state affiliate legal counsel, your UniServ representative will be able to advise you
about what job protections, if any, apply to your situation and will provide the assistance and support that you need.
NOTE: This section provides general background information only and is not a substitute for a particularized
assessment of an actual problem by an attorney familiar with the governing local laws of your area.
Know Your Rights: Legal Protection for Gay, Lesbian, Bisexual, and Transgendered Education Employees
Overview
Despite mounting evidence that gay, lesbian, bisexual, and transgendered persons suffer from employment
discrimination at an alarming rate, [1] the federal government has not enacted legislation to prohibit discrimination
on the basis of sexual orientation/gender identification. Title VII of the Civil Rights Act of 1964, the federal law
banning employment discrimination, provides protection on the basis of race, color, religion, sex, and national origin.
Discrimination on the basis of sexual orientation/gender identification, however, is not unlawful under Title VII.
Although various members of Congress have introduced legislation to outlaw sexual orientation discrimination, these
efforts have been unsuccessful to date.
Efforts to secure job protections have been somewhat successful at the state and local levels. The District of
Columbia and 12 states - California, Connecticut, Hawaii, Maryland, Massachusetts, Minnesota, Nevada, New
Hampshire, New Jersey, Rhode Island, Vermont, and Wisconsin have adopted legislation prohibiting employment
discrimination on the basis of sexual orientation. Additionally, more than 100 cities and counties have enacted local
laws banning this form of employment discrimination. [2]
In addition to working for the passage of state and local statutory protections, advocates for nondiscrimination have
turned to the federal courts for help. Borrowing from the civil rights movement of the 1960s, they have argued that
discrimination against gay, lesbian, bisexual, and transgendered persons violates the U.S. Constitution, specifically
the Equal Protection Clause of the Fourteenth Amendment. This strategy has resulted in several significant rulings.
In 1996, the U.S. Supreme Court struck down an amendment to the Colorado Constitution prohibiting state and local
governments - including school districts - from enacting laws and policies that banned discrimination against gay,
lesbian, and bisexual persons. In Romer v. Evans, the Court ruled that the amendment violated the Equal Protection
Clause, in part, because it was prompted by animosity toward homosexuals and “a bare desire to harm a politically
unpopular group.” [3] The Court also said that it infringed on the rights of gays and lesbians to participate in the
political process. The Court’s ruling is an important victory because it provides advocates with a new legal weapon
for challenging sexual orientation discrimination.
Relying on the Romer decision, for example, a federal appeals court in Wisconsin ruled later that year that it is a
violation of the Equal Protection Clause for a school district to fail to protect a gay student from anti-gay harassment
perpetrated by his peers. The court’s ruling in Nabozny v. Podlesny [4] resulted in a settlement of nearly $1 million
for the student.
More recently, federal district courts in Ohio and Utah ruled in 1998 that it was unconstitutional for a school district to
discriminate against a gay or lesbian teacher, citing the Romer decision. In the Ohio case, Glover v. Williamsburg
Local School District, [5] the court ruled that a district violated a gay teacher’s Equal Protection rights by not
renewing his contract because of his sexual orientation. Similarly, in the Utah case, Weaver v. Nebo School District,
[6] the court held that a school district violated the Equal Protection Clause by taking away coaching responsibilities
from a lesbian teacher because of her sexual orientation.
Although the civil rights battle is far from over, these recent developments suggest that the U.S. Constitution and
federal courts may yet provide gay, lesbian, bisexual, and transgendered education employees with protection from
egregious job discrimination. [7]
Questions and Answers
Q. What job protections are available if my employer discriminates against me because of my sexual
orientation/gender identification?
A. As discussed in the overview, the U.S. Constitution, specifically the Equal Protection Clause, may provide you with
legal protection. However, you should contact your UniServ representative to assess your particular situation. Other
sources of job protection may include:
• Nondiscrimination Clause in the Collective Bargaining Agreement. Many collective bargaining agreements contain
a nondiscrimination clause prohibiting the employer from discriminating on the basis of sexual orientation/gender
identification, as well as race, gender, and the like. Such provisions are generally enforceable through the
grievance/ arbitration process.
• “Just Cause” Provision in the Collective Bargaining Agreement. Most collective bargaining agreements prohibit
discipline or discharge except for “just cause.” This protection should prohibit an employer from punishing an
employee solely because of his or her sexual orientation/gender identification. In fact, a Pennsylvania arbitrator in
1994 relied on a “just cause” provision to overturn a school district’s decision to fire a teacher because he was gay.
• State Tenure or Continuing Contract Law. Even in states where school employees lack bargaining rights, most
teachers enjoy the benefits of a tenure or continuing contract law, which prohibits discipline or discharge except for
“just cause.” Such a statute should prevent an employer from dismissing or otherwise punishing an employee
because of his or her sexual orientation/gender identification.
• School Board Policy. Some school boards have voluntarily adopted policies prohibiting sexual orientation/gender
identification discrimination. These policies are generally enforceable in court.
• State or Local Anti-Discrimination Law. As mentioned in the overview, 12 states and the District of Columbia, as
well as numerous cities and counties, have enacted laws banning discrimination on the basis of sexual orientation.
Citations to these statutory protections can be found on the website for the Lambda Legal Defense and Education
Fund at http://www.lambdalegal.org/cgi-bin/iowa/states/antidiscrimi-map.
• First Amendment. The First Amendment of the U.S. Constitution protects public employees from retaliation for
speaking out about issues of public concern, so long as the employee’s speech is not disruptive to the employer.
This would include publicly protesting discrimination or advocating for a change in the law. In 1984, a federal
appeals court in National Gay Task Force v. Board of Education of Oklahoma City [8] struck down an Oklahoma
statute that prohibited teachers from “advocating, encouraging or promoting public homosexual activity.” The court
ruled that the statute violated a teacher’s First Amendment right to advocate publicly against discrimination on the
basis of sexual orientation.
Q. What should I do if my employer discriminates against me because of my sexual orientation/gender
identification?
A. Follow this advice:
• Call your UniServ representative immediately. Your UniServ representative is trained to help you assess the best
approach for handling your situation and has access to legal counsel. You are ill-advised to make any decision prior
to consultation with your UniServ representative.
• Document the discrimination. Proving a discriminatory motive is often the hardest part of any legal dispute. Keep a
written record of incriminating statements, including the dates and names of witnesses. Because such records may
be used as evidence, however, be careful not to refer to supervisors or others in pejorative terms.
• Get emotional support. Make sure you have proper emotional support from family and friends. Seek help from a
professional if necessary.
• Avoid signing resignation letters, negative evaluations, or written warnings until you have consulted with your
UniServ representative. By signing such documents, you may impair your ability to fight the discrimination.
• If you’ve been discharged, look for another job. You have a legal obligation to minimize your damages. Keep
records of your job search, including a log of telephone contacts and interviews.
Q. What should I do if my employer threatens public disclosure of my sexual orientation against my
wishes?
A. Consult your UniServ representative immediately. At least one federal appeals court has ruled that threatened
public disclosure of a person’s suspected sexual orientation is unlawful. In Sterling v. Borough of Minersville, [9] a
police officer threatened to disclose the suspected homosexuality of an arrested youth to his family members. The
youth subsequently committed suicide, and his family sued the police officer in federal court. The court ruled that the
officer’s threat to disclose that the youth was gay violated his constitutional right to privacy.
Q. What should I do if I’m harassed by my students or coworkers because of my sexual orientation or
gender identification?
A. Treat this harassment like any other form of harassment. With the assistance of your UniServ representative,
notify your supervisor and insist that he or she take whatever action is necessary to make the harassment stop. You
may be able to file a complaint under the school’s anti-harassment policy or file a grievance. The worst thing you
can do is remain silent; the employer has no obligation to take remedial action if you do not complain about the
harassment. Anti-gay harassment is a form of sexual orientation discrimination. If your employer fails to take prompt
and appropriate remedial action, you may be entitled to legal recourse.
Q. What legal remedies are available if my employer fails to make the harassment against me stop?
A. The Equal Protection Clause of the U.S. Constitution may provide you with protection. In addition to the Nabozny
decision mentioned in the overview, a federal district court in New York recently ruled that a police department
violated the Equal Protection rights of a gay police officer by failing to stop harassment by his coworkers. The case
is Quinn V. Nassau County Police Department. [10] Other sources of job protection may include:
• Title VII. Although Title VII does not prohibit harassment on the basis of sexual orientation/ gender identification, it
does prohibit sexual harassment in the workplace, regardless of the victim’s sexual orientation. Thus, if the
harassment meets the legal definition of “sexual harassment,” i.e., it is conduct of a sexual nature that is unwelcome
and severe or pervasive, then it is unlawful under Title VII. Also, the Supreme Court has ruled that same-sex sexual
harassment (e.g., male-on-male) can be a Title VII violation. [11]
• Nondiscrimination Clause in the Collective Bargaining Agreement. A comprehensive nondiscrimination clause, as
described in the first question, would prohibit an employer from ignoring employee complaints about harassment
based on sexual orientation/gender identification in the workplace.
• “Safe Working Conditions” Provision in the Collective Bargaining Agreement. Some collective bargaining
agreements contain provisions barring employees from working in “unsafe or hazardous conditions.” Arguably, such
a provision would require an employer to stop abuse on the basis of sexual orientation/gender identification because
it creates an “unsafe working condition” for the employee.
• School Board Policy. Some school boards have adopted comprehensive anti-harassment policies that prohibit
sexual orientation/gender identification harassment, as well as sexual harassment.
• State or Local Anti-Discrimination Law. Harassment based on sexual orientation/gender identification also may be
illegal in those jurisdictions where there is a state or local law banning sexual orientation/gender identification
discrimination.
Q. Do I have the right to “come out” to my students in the classroom?
A. It is virtually impossible to answer this question in the abstract. On one hand, it is unlikely that you have the right
under the First Amendment to make such a statement in the classroom. Your free speech rights are strongest when
speaking off-duty about matters of “public concern” and weakest when speaking in the classroom about purely
personal matters. In fact, several recent “academic freedom” cases suggest that, when speaking in the classroom,
teachers are not speaking as private individuals, but as representatives of the school district, and thus have virtually
no free speech rights.
On the other hand, if you are tenured or have “just cause” protection under a collective bargaining agreement, then
a strong argument can be made that the act of disclosing your sexual orientation does not constitute just cause for
discharge or discipline. In addition, if heterosexual teachers routinely discuss their home life and spouses in class
without punishment, it arguably would be discriminatory under the Equal Protection Clause for the school
administration to discipline gay, lesbian, or bisexual teachers for sharing similar information with their students. [12]
Q. But can I respond honestly if a student asks me directly if am gay?
A. The answer is the same: it depends on the facts of your particular case. While such a private conversation
probably is not protected under the First Amendment (at least if it occurs in the workplace), a tenure law or collective
bargaining agreement may preclude discipline. For this reason, if you are considering “coming out” to your students,
you should first consult with your UniServ representative and assess what legal protections, if any, are available to
you.
Q. Working through my local Association, what preventive measures can I take to protect my job before
discrimination occurs?
A. Working through the Association, you can:
• Bargain protections. Make sure your collective bargaining agreement contains the protections outlined in this
pamphlet, i.e., a nondiscrimination clause that covers sexual orientation/gender identification, a just cause provision,
and/or a safe working conditions provision.
• Work with your school board to adopt a nondiscrimination policy. In non-bargaining states, encourage your school
board to adopt a policy that prohibits sexual orientation/gender identification discrimination and harassment and
provides a grievance procedure for resolving complaints.
• Be politically active. Lobby Congress, your state legislature, and your city or county council to enact statutory
protections against this form of employment discrimination.
• Keep a clean record. Because petty problems attributed to the employee’s job performance can be used by a
school district as a pretext for discrimination, try to keep your employment record clean.
• Build community coalitions. Working with other local organizations is one way to achieve the goal of a
nondiscriminatory workplace.
Notes
1. According to studies, “nearly one-third of all gay men surveyed report being discriminated against in some form
on the job, and 17 percent report having lost or having been denied employment because they were gay. Similarly,
nearly one quarter of lesbians surveyed report that they have been discriminated against in the workforce.” See
Lambda Legal Defense and Education Fund, Sexual Orientation Discrimination in Employment: A Guide to
Remedies (March 2, 1998), at p.5.
2. See Lambda Legal Defense and Education Fund, Map of States, Cities, and Counties Which Prohibit Sexual
Orientation Discrimination, posted on the Internet at http://www.lambdalegal.org/cgi-bin/iowa/states/antidiscrimi-map.
3. Romer v. Evans, 517 U.S. 620, 634 (1996). The Romer decision is also posted on the Internet at http://supct.law.
cornell.edu/supct/html/94-1039.ZO.html
4 Nabozny v. Podlesny, 92 E3d 446 (7th Cir. 1996). The Nabozny decision is also posted on the Internet at http:
//www.kentlaw.edu/7circuit/1996/jul/95-3634.html.
5. Glover v. Williamsburg Local School District, 20 E Supp.2d 1160 (S.D. Ohio 1998).
6. Weaver v. Nebo School District, 29 F. Supp.2d 1279 (D. Utah 1998). The Weaver decision is also posted on the
Internet at http://www.acluutah.org/weaverdecision.htm.
7. See also Stemler v. City of Florence, 126 F.3d 856 (6th Cir. 1997) (selective prosecution for DUI on basis of
sexual orientation violates Equal Protection Clause); Zavatsky v. Anderson, 130 F. Supp.2d 349 (D. Conn. 2001)
(discrimination on basis of sexual orientation (denial of child visitation) violates Equal Protection Clause; individual
defendants not entitled to qualified immunity).
8. National Gay Task Force v. Board of Education of City of Oklahoma City, 729 E2d 1270 (10th Cir. 1984), aff’d by
equally divided court, 470 U.S. 903(1985).
9. Sterling v. Borough of Minersville, 232 F.3d 190 (3d Cir. 2000). The Sterling decision is also posted on the
Internet at http://www.ca3.uscourts.gov/opinions/991768o.txt.
10. Quinn v. Nassau County Police Department, 53 E Supp.2d 347 (E.D.N.Y. 1999).
11. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).
12. Weaver v. Nebo School District, 29 E Supp.2d 1279, 1289-90 (D. Utah 1998).