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LGBT employees seek protection from workplace discrimination ASAP

September 25th, 2009  |  Lucas Otto

>There seems to be little that stokes the flames of passionate argument more than the terms “sexual orientation,” and when you add “workplace” and “rights” into the mix, it has the potential to stir up a hornet’s nest of controversy. Yet, Congress is dealing with these very workplace discrimination issues with the introduction of the Employment Non-Discrimination Act (ENDA), a bill (S. 1584) that would prohibit discrimination against employees on the basis of sexual orientation, gender identity, and disability—and specifically includes transgendered individuals—and would apply to civilian employers with over 15 employees (religious employers excepted).

For most employers, discriminatory practices are simply not tolerated, but sexual orientation discrimination, consisting mainly of discrimination against lesbian, gay, bisexual & transgender (LGBT) employees, continues to lie in the proverbial “gray area.” A recent study by the Williams Institute found that:

“Twenty-nine states do not have anti-discrimination statutes that prohibit sexual-orientation discrimination and 35 do not have statutes that prohibit gender identity-discrimination. Of the states that do have anti-discrimination statutes that prohibit discrimination on these bases:

  • Three do not prohibit discrimination on the basis of perceived sexual orientation;
  • Five either do not provide for compensatory damages or subject such damages to caps that are lower than ENDA’s; and
  • Five do not provide for attorneys’ fees, and another five only provide for them if the employee files a court action as opposed to an administrative action.”

The study, which primarily showed that unconstitutional discrimination on the basis of sexual orientation occurred with the same high frequency in state and local governments as it did in the private sector, showed two disturbing workplace realities: (1) Job discrimination on the basis of sexual orientation or gender identity by employers appears to be legal in a majority of U.S. states; and (2) One in five LGBT public sector employees has experienced workplace discrimination on the basis of sexual orientation, and a significant wage gap exists between heterosexual and LGBT employees.

While the study dealt with state and local government employers, it no doubt illustrates the chilling effect this type of workplace discrimination can have on its recipients, even those working for private employers. The question most likely posed by many of these LGBT individuals is: Why—with race, gender, religious and national origin employment discrimination laws—are we, as a group, not also afforded protection by anti-discriminatory laws? The answer does not appear to be simple, and most employers, public and private, likely don’t want to venture into issues surrounding employees and their sexual orientation unless forced to do so.

Yet, with ENDA, these individuals would enjoy workplace discrimination protections. However, ENDA has been introduced in every Congress, except the 109th, since 1994, and has failed to pass. So what is the proper course of action an employer should take with respect to sexual orientation and gender-identity discrimination in the absence of ENDA? Well, when looking at dollars and cents, as every employer does, it only makes sense to preemptively address these issues, and educate company officials on not only current state employment laws regarding sexual orientation, but also on what changes are to be expected if ENDA does pass.

Because, however uncomfortable the discussion of sexual orientation discrimination in the workplace might be, the discussion is not going to go away, and it will cost an employer a lot more (e.g., litigation costs, lower worker productivity) if it simply turns a blind eye to the issue.