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.
- By the law’s definition of “sexual orientation,” it does not “impose any duty on a religious organization” (See R.I. Gen. Laws §§ 28-5-6 (16); 34-37-3(15) and 11-24-2.1(h)). That restriction on the reach of the non-discrimination law does not apply to the law’s protections on the basis of gender identity or expression.
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.