KNOW YOUR RIGHTS: LGBTQ Rights at Work

In most places of employment, the answer is “no.” Under Rhode Island’s Fair Employment Practices Act (FEPA), gay men, lesbians and bisexuals have the same protections and remedies as people discriminated against in employment on grounds of race, color, religion, sex, disability, age or country of ancestral origin. The remedies can include hiring or reinstatement, back pay, compensatory damages and attorney’s fees. All government entities, any private entity employing four or more people, people “acting in the interest of an employer directly or indirectly,” employment agencies and labor organizations are all prohibited from engaging in discriminatory activities under FEPA.

No. In addition to providing protection on the basis of sexual orientation, the state law cited above prohibits discrimination on the basis of gender identity or expression, which is defined to include “a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self image, gender-related appearance, or gender-related expression.”

Yes. Rhode Island’s Fair Employment Practices Act makes it illegal for an employer to use any application form or otherwise attempt to find out information, directly or indirectly, about your sex, sexual orientation, gender identity or expression, race or color, religion, disability, age or country of ancestral origin. In addition to preventing discrimination, this law helps protect your privacy and your ability to maintain the confidentiality of personal information that should be irrelevant to the employment application process. Some employers may ask job applicants to sign a consent form giving the employer unrestricted access to medical, school, employment and/or criminal records that pertain to the applicant. Such blanket consent forms are probably illegal.

No. State law specifically forbids employers from requiring employees or job applicants to be tested for HIV, the virus responsible for AIDS, or from discriminating against an individual based on a positive HIV test “or perception of a positive test.” This means it is also illegal for an employer to discriminate against a person based on outmoded and prejudicial fears about HIV.

Probably. With a few narrow exceptions, the federal Americans with Disabilities Act sets very strict limits on the release by employers of information obtained from post-offer and post-hire medical examinations of employees. Whether such a disclosure also rises to the level of a constitutional violation often depends on the seriousness of the medical issue at hand, and whether a government agency is involved. In addition, Rhode Island has a health care confidentiality act, which limits the dissemination, by an employer or others, of your medical records without your consent. The statute authorizes persons whose confidentiality has been violated to sue for damages, and successful suits have been brought under the law.

If you are a private employee, you generally must follow your employer’s dress and grooming codes, but there are limitations. For many years, employer dress codes that would appear discriminatory – such as ones requiring short hair on men but not on women – were generally deemed permissible as long as they had some justification in commonly accepted social norms and were reasonably related to business needs. However, gender-specific dress code policies may now be subject to challenge as unlawful “gender stereotyping” in violation of anti-discrimination statutes. Gender-based dress codes may also violate a state law that specifically prohibits discrimination on the basis of “gender-related self image” or “gender-related appearance.”

In response to stories of employers further victimizing victims of domestic violence, a Rhode Island state law was enacted which recognizes that it is up to the victim, not their employer, to decide whether to seek help in the courts for this problem. The law bars employers from firing, refusing to hire or otherwise discriminating against a person solely because they sought or obtained, or refused to seek or obtain, a domestic violence restraining order. This law, as well as all other domestic violence laws, apply equally to same-sex and opposite sex couples.

RI state law does not prevent a private employer from discharging an employee who engages in extra-marital sex. Private sector employers have great discretion in deciding to terminate their associations with people they consider “immoral.” However, a violation of the law may exist if the employer dismisses a gay or lesbian employee for taking part in an “affair” but takes no action against a heterosexual employee, or inqures about “affairs” of applicants or employees of only one sex, sexual orientation or gender identity. In the public sector, the employer typically cannot discharge an employee without cause. Moreover, the public employee may assert constitutional rights of due process and privacy in support of his or her right not to be dismissed.