Under federal law there is a great amount of debate among circuit courts whether or not Title VII (The Civil Rights Act of 1964) protects against discrimination based on sexual orientation and gender identity. Wittmer v. Phillips 66 Co., Case No. 18-20251 (5th Cir. 2019) (folding sexual orientation not protected under prohibition of sex discrimination); Kimberly Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017) (holding sexual orientation is protected under prohibition of sex discrimination). Luckily, in Nevada we have state laws that provide specific protections for sexual orientation and gender identity.
The most remarkable thing about Nevada’s laws is the bulk of them were enacted twenty years ago in a time period when many states were limiting the rights of LGBTQ citizens. During the 1999 Nevada Legislative Session, the Legislature made it unlawful for an employer to discriminate against employees based on the employee’s actual or perceived (important distinction that Nevada has and some states do not) sexual orientation. The law applies to both public and private employers. During the 2011 Nevada Legislative Session, the Legislature passed and the Governor signed bills prohibiting discrimination in employment based on a person’s gender identity or expression. This law also applies to private and public employers.
Nevada law defines “gender identity or expression” as “gender-related identity, appearance, expression or behavior of a person, regardless of the person’s assigned sex at birth.” NRS 613.310(4). Nevada law defines “sexual orientation” as “having or being perceived as having an orientation for heterosexuality, homosexuality or bisexuality.” NRS 613.310(7).
Under Nevada law, It is unlawful to refuse to hire a person, to discipline or discharge a person, to limit pay or benefits to a person, or to provide different terms and conditions of employment to a person based on their gender identity or sexual orientation. NRS 613.330. If an employer, either public or private, has more than 15 employees this law applies to them.
A violation of NRS 613.330 can be remedied through the filing of a charge with the Nevada Equal Rights Commission (NERC). The charge of discrimination must be filed within 300 days for the violative act. A charge must be filed first. An employee is not permitted to simply file a court case. If an employee fails to file a charge with NERC, their court case can be dismissed for failing to exhaust administrative remedies. NERC has excellent fact sheets on sexual orientation discrimination and gender identity discrimination here and here.
The protection of individuals from employment discrimination based on their gender identity or sexual orientation is an important right that is guaranteed by Nevada law but is unclear under federal law. Nevada employees need to be aware of these protections and to fully understand their rights under these laws.
If an employee believes they have been discriminated against because of their sexual orientation or gender identity, they should contact a Nevada attorney with experience in labor and employment law to discuss their case and concerns.
