This summer, the United States Supreme Court held that Title VII of the Civil Rights Act protects workers from discrimination based on sexual orientation and gender identity. In a 6-3 opinion, Justice Neil Gorsuch found that “homosexuality and transgender status are inextricably bound up with sex,” and as a result, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Bostock v. Clayton Cnty., Ga., 590 U.S. __ (2020).
While this landmark decision ensures that sexual orientation and gender identity are protected categories under federal law, many individual states and localities provide varying degrees of protection for LGBTQ+ workers. For employers in the entertainment industry, it is important to be aware of these state and local laws when structuring and implementing employment policies, as those laws can significantly impact prospective liability.
For example, Georgia, the home state of the named plaintiff in Bostock and a popular filming location because of the state’s generous tax credits, simply guarantees “equal protection of the laws,” but does not expressly prohibit discrimination based on sexual orientation and/or gender identity. Ga. Const. § 1, ¶ 2. Likewise, Georgia’s other anti-discrimination statutes do not expressly prohibit LGBTQ+ discrimination. See, e.g., Ga. Code Ann. § 45-19-21 (preventing discrimination in public employment based on race, color, religion, national origin, sex, disability, or age). However, Atlanta’s city code prohibits discrimination on the basis of both sexual orientation and gender identity in employment, as well as public accommodations and housing. Atlanta, Ga., Code § 94-112, § 94-114, § 94-68, § 94-92. Thus, an LGBTQ+ employee in Atlanta can now assert employment discrimination claims under federal and local laws, but not state law.
On the other end of the spectrum, New York state law expressly prohibits discrimination on the basis of sexual orientation and gender identity or expression in employment, public accommodations, housing, and credit. N.Y. Exec. Law § 296. The law provides an extensive list of damages available to the employee, including a civil fine of up to $100,000. Id. § 297(4)(c). New York City also has its own ordinances that prohibit discrimination based on “actual or perceived . . . gender . . . [and] sexual orientation.” New York City, N.Y., Admin. Code § 8-107(31)(c)(1). The penalties for a violation of this local law are even higher than state penalties, as the civil fine can be up to $250,000. Id. § 8-126.
Likewise, California’s Fair Employment and Housing Act prohibits discrimination based on “gender identity, gender expression, or sexual orientation.” Cal. Gov. Code §12940(a). At the local level, the Los Angeles Municipal Code also prohibits discrimination in employment on the basis of sexual orientation. LAMC § 49.72. California law also provides more expansive remedies than federal law, including damages for front pay, out-of-pocket expenses, damages for emotional distress, and attorney’s fees and costs. Thus, in both New York and California, not only can employees assert more claims at the state and local levels, but even greater damages are at stake than under federal law.
Employers in the entertainment industry have a number of legal factors to consider when preparing for the filming of their next project. Understanding what employees’ rights and remedies are in each potential filming location, including as to LGBTQ+ protections, should be a key part of that planning process.