In early February 2021, the Human Rights Campaign (HRC) released its annual Equality Index, which analyzes each U.S. state’s progress and rating on how close they are to achieving legal equality for LGBTQ+ people. The index analyzes both laws passed and any proposed bills (for example, the anti-trans bills proposed in several state legislatures dealing with high school sports) or grassroots activity. South Carolina received the Campaign’s lowest rating, “high priority to achieve basic equality.” This means, as many LGBTQ+ Southerners are aware, there are few, if any, protections for the community in the state, especially in the workplace.
No State Law Exists
If one examines the Index, one can see that South Carolina does have several anti-LGBTQ+ laws on the books, such as laws restricting discussion of LGBTQ+ topics in schools (ruled unconstitutional, but not yet taken off the books), and those permitting discrimination against same-sex couples in adoption matters. However, in many situations the Index examines, South Carolina simply has no law for or against something on its books. For example, the state has no policy regarding discrimination against LGBTQ+ people in the workplace—nothing that encourages or permits discrimination, per se, but nothing that explicitly condemns it, either.
That said, since the Supreme Court ruling in Bostock v. Clayton County (2020), federal anti-discrimination law has been held to apply to LGBTQ+ workers nationwide. Bostock ruled that the sex discrimination provisions of the Title VII of the Civil Rights Act of 1964 apply in cases involving sexual orientation and gender identity. However, this is not always enough to shield LGBTQ+ workers from disparate or unfair treatment in the workplace. If you’ve been fired or otherwise mistreated by your employer due to your sexual orientation or gender identity, it’s not always easy to understand your options.
Filing A Charge
If you believe you have a cause of action against your employer, you’ll generally need to file a charge under federal law, because no state laws explicitly protect LGBTQ+ people. You can still file with either the South Carolina Human Affairs Commission (HAC) or the Equal Employment Opportunity Commission (EEOC) because they have a working relationship. This means any claim filed with one is filed automatically with the other—but federal law must be the authority.
Claims based on sexual orientation or gender identity should be filed, in most cases, as complaints of sex discrimination. This is because, at their root, the injured plaintiff is being judged based on their behavior. For example, if a man is fired because his attraction to men becomes known, he may be able to argue sex-based discrimination because most bosses would not fire a woman based on her attraction to men. These claims can get extremely complex, however, so regardless, it is a good idea to consult an experienced attorney to help with seeking the compensation you deserve.
Contact A South Carolina Employment Discrimination Attorney
While the Bostock case has helped to level the proverbial playing field for LGBTQ+ people in the workplace, it does not mean that sexual orientation and gender identity-based discrimination will automatically cease. If you believe you have been the victim of discrimination in the workplace based on these characteristics, calling a South Carolina employment discrimination lawyer should be your first call. Attorney A. Christopher Potts and the firm of Hitchcock & Potts have handled many discrimination cases over the years. We are happy to help you with yours. Contact our offices today to schedule a consultation.