Youth Employment | Rhode Island

Yes.  Since 1995, Rhode Island has had a comprehensive anti-discrimination law concerning sexual orientation in employment, housing, credit and public accommodations and has included sexual orientation under its equal opportunity and affirmative action law.  In 2001, Rhode Island added gender identity or expression to each of these statutory protections (R.I. Gen. Laws, ch. 11-24 (public accommodations); ch. 28-5 (employment); ch. 28-5.1 (equal opportunity and affirmative action); and ch. 34-37 (housing and credit)).

Yes.  The anti-discrimination laws define “sexual orientation” as “having or being perceived as having an orientation for heterosexuality, bisexuality or homosexuality and define “gender identity or expression” as including a “person’s actual or perceived gender” (R.I. Gen. Laws §§ 28-5-6(11)(gender identity or expression) and (16)(sexual orientation) (employment); 34-37-3(9)(gender identity or expression) and (15)(sexual orientation) (housing and credit); and 11-24-2.1(h)(sexual orientation) and (i)(gender identity or expression) (public accommodations)). Thus, if a person is fired because they are perceived to be gay (whether they are or not), they may still invoke the protection of the anti-discrimination law to challenge the firing.

The anti-discrimination law applies to all public employers and private employers who employ 4 or more individuals (R.I. Gen. Laws § 28-5-6 (8)(i)).

It forbids employers from refusing to hire a person, or discharging them, or discriminating against them in compensation, in terms, conditions or privileges of employment or in any other matter directly or indirectly related to employment because of sexual orientation or gender identity or expression (R.I. Gen. Laws § 28-5-7 (1)). Beyond hiring and firing, this covers most significant job actions, such as failure to promote, demotion, excessive discipline, harassment and different treatment of the employee and similarly situated co-workers.  It also prohibits an employer from inquiring about a person’s sexual orientation or gender identity or expression either in a job application or during a job interview or maintaining such information unless based on a certified bona fide occupational qualification or where necessary to comply with a federal affirmative action plan (R.I. Gen. Laws § 28-5-7(4)).

The law also applies to employment agencies and labor organizations (e.g. unions) (R.I. Gen. Laws §§ 28-5-7 (2) and (3)).

It should be noted that all educational programs and activities of state agencies as well as all state employment services are required to be open to all without regard to sexual orientation or gender identity or expression (R.I. Gen. Laws §§ 28-5.1(8) and (9)).

As broad as the law is, there are several exemptions.

• Employers with fewer than 4 employees are exempt (R.I. Gen. Laws § 28-5-6(8)(i)).
• An employer, employment agency or labor organization may seek a certification from the R.I. Commission for Human Rights that it is a “bona fide occupational qualification” of a particular position that it not be filled by someone otherwise protected by the law such as an LGBT person (R.I. Gen. Laws § 28-5-7 (4)). While this immunity is allowed in the law, it is strictly applied and very rarely successful.
• The employment discrimination statute does not apply “to a religious corporation, association, educational institution, or society with respect to the employment of individuals of its religion to perform work connected with the carrying on of its activities” (R.I. Gen. Laws § 28-5-6(8)(ii)). This exemption, however, is not a carte blanche for an employer to use his or her religious beliefs as a justification for discrimination.

It is important to note that unlawful employment practices in Rhode Island also include practices which have a “disparate impact” on the basis of sexual orientation or gender identity or expression (or other characteristics) when the employer is unable to show that the practice or group of practices in question is required by “business necessity” (R.I. Gen. Laws § 28-5-7.2). This can be important to combat discrimination based on policies or practices that are not LGBT-specific but harm LGBT people more than others.

Yes, by case law, sexual harassment is forbidden as sex discrimination (See, e.g., Iacampo v. Hasbro, Inc., 929 F. Supp. 562 (D.R.I. 1996)).

In addition, employers with at least 50 employees and employment agencies must develop and disseminate to their workers anti-sexual harassment policies in their workplaces (R.I. Gen. Laws §§ 28-51-1(a); and 28-51-2 (a), (b)). The law also strongly encourages employers to train employees on the scope of the policy (R.I. Gen. Laws § 28-51-2 (c)).

For purposes of this statute, “sexual harassment” is defined as:

any unwelcome sexual advances or requests for sexual favors or any other verbal or physical conduct of a sexual nature when:

• Submission to such conduct or advances or requests is made either explicitly or implicitly a term or condition of an individual’s employment; or
• Submission to such conduct or advances or requests by an individual is used as the basis for employment decisions affecting such individual; or
• Such conduct or advances or requests have the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment (R.I. Gen. Laws § 28-51-1(b)).

It is just as unlawful to sexually harass an LGBT individual as it is to harass anyone else.  Some harassment is specifically anti-gay, and may be more fairly characterized as harassment on the basis of sexual orientation.  Similarly, some harassment may be specifically anti-transgender and may be pursued more appropriately as discrimination based on gender identity or expression.  Other harassment is sexual in nature and more appropriately categorized as “sexual harassment.”  Each type of harassment can happen to the same person, and all are forbidden (See R.I. Gen. Laws § 28-5-7(1)(v) (recognizing need for response to complaints of harassment on the basis of sexual orientation and gender identity or expression in addition to that based on sex)).

Moreover, that the sex of the harasser and the victim is the same does not defeat a claim of sexual harassment.  Same-sex sexual harassment has been held to violate both state and federal anti-discrimination laws (See Mann v. Lima, 290 F. Supp. 2d 190, 194 (D.R.I. 2003)(applying Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79-81 (198);  see also R.I. Gen. Laws, § 28-44-17 (sexual harassment against members of either sex may constitute “good cause” for quitting job under unemployment laws)).

Although the anti-discrimination law says that an employer cannot discriminate on the basis of sexual orientation in terms of compensation, and even though employee benefits are a form of compensation, in many, if not most circumstances, that law probably cannot be used to compel an employer to provide benefits to an employee’s unmarried, same-sex partner.

Under R.I. Gen. Laws, § 28-5-7 (1)(ii), even if an employer provides insurance benefits to some employees, “nothing herein shall require those benefits to be offered to unmarried partners of named employees.” As a result, the anti-discrimination cannot be used to compel an employer to provide domestic partner insurance benefits.  Note that nothing in the law forbids an employer from providing domestic partner benefits if it chooses to do so.  As discussed below, the state and several municipalities have already equalized some benefits like health insurance.

When an employee has a legal spouse, however, under some circumstances the anti-discrimination law may be a means to ensure equal treatment of same-sex spouses as different-sex spouses.  The availability of such a claim depends on the type of benefit sought (i.e., family or medical leave versus health insurance) and on the type and terms of the particular benefits plan.  This area of law is complicated and you should feel free to contact GLAD for information specific to your situation.