As an employee, it is essential to know exactly what your employment rights are and whether you fall within a category granted special protections under the law. This is difficult for the LGBT community, as there are no protections against discrimination based on sexual orientation or gender identity at the federal level, resulting in a lack of consistency among state laws. Moreover, some states and even individual counties and municipalities have passed laws that broaden the scope of their nondiscrimination laws.
Based on Title VII of the Civil Rights Act of 1964, the U.S. Equal Employment Opportunity Commission is the agency responsible for enforcing federal laws barring discrimination against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 and over), disability or genetic information. Most employers with at least 15 employees are covered by the EEOC and the laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages and benefits. Unfortunately, Title VII provides no protections for those discriminated against at work based on sexual orientation or gender identity. Thus, it remains legal in 29 states to discriminate based on sexual orientation, and in 38 states to do so based on gender identity or expression.
ENDA: What to expect
There is a chance a federal law may provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity in the future: The pending Employment Non-Discrimination Act is closely modeled on existing civil-rights laws, including Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. U.S. Reps. Barney Frank (D-Mass.) and Ileana Ros-Lehtinen (R-Fla.) and Sens. Jeff Merkley (D-Ore.) and Susan Collins (R-Maine) introduced the legislation in this session of Congress. If passed, it would prohibit public and private employers, employment agencies and labor unions from using an individual’s sexual orientation or gender identity as the basis for employment decisions. It would also apply to Congress and the federal government, as well as employees of state and local governments.
Regrettably, ENDA has been criticized for being too light in its protections, with some even calling it “Splenda,” because it does not apply to businesses with fewer than 15 employees, religious organizations or uniformed members of the armed forces, meaning it does not affect the “Don’t Ask, Don’t Tell” policy. It also does not allow for quotas or preferential treatment based on sexual orientation or gender identity or for a “disparate impact” claim similar to the one available under Title VII, or for the imposition of affirmative action for an ENDA violation.
Furthermore, ENDA would not apply retroactively; thus, someone discriminated against even a day before its passing would not have cause of action. ENDA will likely be voted on by the full committee as early as April 21, 2011, with a floor vote soon thereafter. The last actions taken on the bill were on Sept. 23, 2009, when the House Education and Labor Committee held a full committee hearing, and on Nov. 5, 2009, when the Senate Committee on Health, Education, Labor and Pensions held a hearing.
What states can do
Devoid of a federal law, however, individual states, counties and even companies, if they so choose, offer more protections. Twenty-one states and the District of Columbia have passed laws prohibiting employment discrimination based on sexual orientation, and 12 states and D.C. also prohibit discrimination based on gender identity. Hundreds of companies have enacted policies protecting their lesbian, gay, bisexual and transgender employees. As of September 2009, 434 (87 percent) of the Fortune 500 companies had implemented nondiscrimination policies that include sexual orientation, and 207 (41 percent) had policies including gender identity.
New Jersey is among the growing number of states with very progressive nondiscrimination laws. The New Jersey Law Against Discrimination makes it unlawful, in the workplace, for employers to discriminate in any job-related action, including recruitment, interviewing, hiring, promotions, discharge, compensation and the terms, conditions and privileges of employment on the basis of any of the law’s specified protected categories. These protected categories include marital status, domestic-partnership status, affectional or sexual orientation, atypical hereditary cellular or blood trait, genetic information liability for military service, or mental or physical disability, including AIDS and HIV-related illnesses. The LAD prohibits intentional discrimination, which may take the form of differential treatment or statements and conduct that reflects discriminatory animus or bias.
In Pennsylvania, the Human Relations Commission enforces commonwealth laws that prohibit discrimination. The Pennsylvania Human Relations Act, which encompasses employment, prohibits discrimination based on virtually all the same categories as those the federal government protects. However, it does not include sexual orientation or gender identity as protected categories. In spite of this, Philadelphia, through the Fair Practices Ordinance (section 9-1103), bars discrimination in the workplace based on both sexual orientation and gender identity.
Still, Pennsylvania is taking steps in the right direction. While most of Pennsylvania counties allow discrimination against LGBT people in employment, housing and public accommodation, House Bill 300 would right this wrong by amending the Pennsylvania Human Relations Act to include “sexual orientation” and “gender identity or expression” as protected classes. The biggest influence on whether this bill passes is Pennsylvania’s next governor: Republican Tom Corbett or Democrat Dan Onorato.
Corbett opposes HB 300 and supports a constitutional ban on same-sex marriage, as stated in a questionnaire to the PA Family Institute. On the other hand, Dan Onorato opposes a constitutional ban on same-sex marriage, supports civil unions and domestic partnerships and supports fully inclusive nondiscrimination protections in employment, housing and public accommodations.
As individual counties and states move toward extending their laws to ban workplace discrimination based on sexual orientation and gender identity, LGBT employees will hopefully find their rights protected in more than just a county or state here and there, but also by the federal government.