Dec 132013

legal-gavel-medium-425x283-4721292There are many ways to “come out.” Whether you’re transgender, bisexual, lesbian or gay, polyamorous, kinky, etc, there may come a time when you find it necessary to be more open about the fact that your lifestyle may not fit society’s norms. But for those of us who live in an alternative lifestyle, could coming out risk your livelihood?

In some cases, the answer may be yes.

Federal law protects an individual from workplace discrimination based on race, religion, sex, national origin, age, disability, and genetic information.1 Depending on your state, or even town, that list may be more comprehensive and could include sexual orientation and gender identity/ expression.2 Legislation is also underway in many jurisdictions to include sexual orientation and gender identity/ expression to state anti-discrimination laws.3

Even when sexual orientation and gender identity/ expression are not expressly listed in a state’s anti-discrimination legislation, there is caselaw that may allow them to be successful in a claim discrimination on the basis of sex. The landmark case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) established a claim for “sex stereotyping,” which may apply where a person’s behaviors fall outside the stereotypical norms of their biological sex and they face an adverse employment action because of it. In this case, the partners of Price Waterhouse believed that Ann Hopkins was too aggressive and too masculine for a woman, and this perception was a motivating factor in her failure to receive a promotion to partner. In other aspects her skills were praised and she had even secured a major contract for the company. 4 The court found that Price Waterhouse impermissibly took Ann Hopkins gender in account when making their promotions decision. Similarly, if a LGBT person can establish that they faced an adverse employment decision based on their failure to conform to gender norms, they may be successful in an employment discrimination claim.

But what about other alternative lifestyles, such as those who are polyamorous or engaged in BDSM? In those cases, I believe that a successful claim of employment discrimination is much more doubtful. Neither people who are polyamorous or engaged in BDSM are members of a protected class, and therefore it is unlikely that their termination will be seen as unlawful discrimination. In these cases it is important to take a look at your employment contract. Is there a morality clause? Does the contract outline specific reasons why you can be terminated? Or are you an at-will employee, meaning that you can be terminated at anytime for any cause? Does your employee handbook provide any guidelines or procedures for termination, and were they followed in your case? All this information may be useful if you feel that you were wrongfully terminated from your position.

This is not meant to scare you into the closet, but it is important to familiarize yourself with the laws of your jurisdiction and what risks you may be taking. The more people who are willing to be out, the more visible our communities will be and ultimately that will lead to more understanding, acceptance, and protections.

This article is presented for informational purposes only, it is not legal advice. If you have specific questions please consult an attorney in your jurisdiction.

Originally posted September 16, 2010