Gay Rights in the U.S. -- Employment Discrimination

As I recently explained, I'm going to be doing a series of posts detailing the current status of LGBT rights in the United States. First off, I want to focus on the issue of employment discrimination.

Almost everybody is aware that there are laws that prohibit employment discrimination against people on the basis of their ethnicity, gender, age, religion, and more. You can't make a hiring decision or terminate someone's employment solely on any of those criteria. Because these laws are so commonplace and cover such a wide variety of things, I've found that a lot of people assume that similar laws are in place covering sexual orientation. But the truth is, it's roughly a coin flip as to whether that's true, and depends very much upon where you live.

At the federal level, there are only a few protections offered to limited groups of government employees -- and these were established only by executive order. This handful of protections could be hypothetically withdrawn at any time by an unsympathetic president. As for offering national protection against such discrimination, no such law exists.

Some states have implemented laws protecting against employment discrimination on their own, but it's a decidedly mixed bag. Some states have protections on the basis of orientation, but no protections for the transgendered. Some states have protections in public sector jobs, but not for private sector jobs. Only 16 states (and D.C.) offer complete protections. 19 states have no protective laws on their books at all.

The bottom line of all this is that in a large number of states (and in private sector jobs in nearly a dozen more), LGBT individuals who have chosen to be open in their personal lives must still remain closely guarded in their professional lives, or be at risk. If an employee in one of these states is discovered to be gay, he could be fired without further reason and without recourse. He could in fact be told directly that he's being fired because he is gay, and be powerless to stop it.

There is a bill proposed in Congress to address the situation, the Employment Non-Discrimination Act (or ENDA). This law would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by civilian, nonreligious employers with at least 15 employees. But don't hold your breath waiting for it to pass. The original version of ENDA was proposed in 1994, and has been raised in virtually every Congress since then. It has never had anywhere close to the number of "co-sponsors" (lawmakers pledging to vote yes) needed to pass it, and so it has rarely ever even been brought up for a vote.

In the current House, the issue has 165 sponsors. A majority vote of 218 representatives (out of 435) is needed to pass the issue there. In the Senate, there are 42 sponsors. In theory, a majority vote of 51 out of 100 (or 50, plus the vote of the sitting Vice President) is needed to pass a law there. In practice, however, the modern Senate regularly embraces the legislative tactic of the filibuster. Senate policy allows any senator to move to extend debate on a topic indefinitely and deny a vote, and it requires 60 votes -- not 50 -- to invoke "cloture" and force the measure to be voted on. The practical result of this is that to pass a law in today's Senate requires 60 votes out of 100, not 50. In short, ENDA -- the best hope for protection for the gay Americans living in "the wrong half of the country" -- is nowhere close to passage.

An alternative path might rest in a Supreme Court ruling that acknowledged LGBTs as a protected class worthy of heightened scrutiny in lawmaking, but things are murky in the Supreme Court as it stands today (a subject I'll elaborate on more fully in a future post).

The fear of employment discrimination is a particularly insidious form of oppression for many LGBTs. Even in situations where an employer may be sympathetic (despite an absence of a protective law), the uncertainty still remains, forcing many people to choose between living openly or protecting their jobs. For those living completely closeted lives, it can even be additional pressure not to come out to anyone, including friends and family, as it's much easier to live one life (even if it's a lie) than to try to maintain two completely separate ones.

Employment discrimination is a matter easily overlooked next to the more headline catching issue of marriage equality, but is nevertheless a significant issue.