When a colleague announces that they have just gotten married or are dating someone new, there are any number of appropriate responses. (We’re partial to “Congratulations!”)
“You’re fired” should not be one of them.
{mosads}As detailed in a recent report by the U.S. Commission on Civil Rights, workplace discrimination against lesbian, gay, bisexual and transgender (LGBT) employees sadly continues to be common across much of the country. And, in many places, the law provides scant defense.
This might surprise some who remember the Supreme Court’s historic ruling legalizing gay marriage. In 2015 the Court did recognize a fundamental right to marry for different-sex and same-sex couples alike. But the safeguards announced in Obergefell extended only to marriage licenses, not employment contracts.
In many places, LGBT workers can be fired for displaying a family photo, kissing their partner goodbye in the parking lot, or seeking to wear the uniform that conforms with their gender—yes, these are all actual cases and find themselves without legal recourse to challenge this blatant discrimination. In 17 states, state law offers no protection whatsoever to workers who face discrimination because of their sexual orientation or their gender identity.
Federal civil rights laws such as Title VII and Title IX should provide recourse, and the Equal Employment Opportunity Commission has clearly stated that they do. But courts have been inconsistent on this question, and under the Trump administration, the Department of Justice has changed its position to oppose the application of existing worker protections to LGBT discrimination.
{mosads}At the state level, protections for LGBT employees are haphazard and inconsistent. Only 20 states and the District of Columbia prohibit workplace discrimination on the basis of both sexual orientation and gender identity. In some states, an executive or administrative order protects state, but not private, employees. In other states, discrimination based on gender identity, but not sexual orientation, is permitted. Further complicating matters, in the absence of effective state action, some cities and towns have stepped in with local regulations, but these are varied and limited in scope—and some states have acted to pre-empt these local efforts.
The result is a confusing patchwork of laws that might allow a transgender man in one zip code to enjoy basic workplace protections that are denied a lesbian a few miles down the road.
The Commission’s mandate is to inform the development of U.S. civil rights policy through fact-finding and advising federal lawmakers. Its new report strongly supports the enactment of federal LGBT workplace protections. Congress’s seventh and most recent effort to do so, the 2017 Equality Act, was introduced last May but is currently stalled in both houses.
By taking action, we in Congress can resolve the Hobson’s Choice LGBT workers currently face. They can be honest about who they are in the workplace, but risk chronic un- or under-employment—gay men, for example, earn on average 10 to 32 percent less than their similarly-qualified male heterosexual peers. Or they can attempt to dissemble for 40+ hours a week, something that has been shown to lead to serious psychological distress and lower productivity. Unfortunately, many choose the latter option: a 2014 report found than 53 percent of LGBT workers are mostly or entirely closeted in the workplace.
Discrimination is not just unfair; it is costly. One study estimates that discrimination against LGBT employees results in $47 million in lost profits every year just in training expenditures and unemployment benefits. States that protect LGBT workers’ rights boast a lower poverty rate among both their LGBT and heterosexual workers.
Corporate America is on board. In fact, it’s leading the way. Successful businesses have recognized that nondiscrimination policies help them attract a competitive workforce and increase employee productivity. As of 2016, 92 percent of Fortune 500 companies included sexual orientation in their equal employment opportunity policies, and 82 percent included gender identity.
Just because non-discrimination policies are good for the bottom line doesn’t mean that we can sit back and hope that market forces alone will solve the problem of LGBT workplace discrimination. Prejudice, fear, and misunderstanding are all powerful forces working against decency and common sense. Civil rights laws can pave the path to progress.
Congress created the Commission more than 60 years ago as an independent, bipartisan agency dedicated to safeguarding the civil rights of all Americans. Its commissioners deserve our thanks for continuing to serve this vital role. We hope that Congress now heeds this call to provide basic civil rights protections for all hard-working Americans.
Ros-Lehtinen represents Florida’s 27th District. Polis represents Colorado’s 2nd District and is co-chair of the LGBT Equality.