On to the next battle — employment equality for LGBT workers

On to the next battle -- employment equality for LGBT workers

By Lisa Mak


Last Friday, the Supreme Court legalized same-sex marriage across America.  This historic decision was a momentous step forward in advancing equality for the LGBT community, but the fight for equality is far from over.  What’s next?

The first battleground is to achieve recognition on a national level that the right to work free from discrimination is a fundamental civil right.  According to a report published last month by the Movement Advancement Project, 61 percent of the LGBT population live in states with medium or low legal protections, or that have hostile laws that restrict their rights.  This includes insufficient to non-existent protections in the employment area, as the report specified that 52 percent of the LGBT population live in states that do not prevent employers from firing them based on their sexual orientation.  Imagine: an employee exercises her Constitutional right to marry on a Saturday, and then on Monday gets fired for doing so.  Or for placing a wedding picture on her desk, talking about her spouse, or expressing her sexual identity in any way.  Outrageously, this could be the reality for the majority of LGBT employees in this country.

Employment discrimination against LGBT workers is undeniably still a prevalent problem.  A 2013 survey from the Pew Research Center found that 21 percent of people surveyed said they had been treated unfairly by an employer based on their sexual orientation or gender identity.  The percentages were markedly higher for transgender employees and LGBT people of color.  A 2013 report authored by various organizations found that nearly 50 percent of black LGBT employees reported experiencing discrimination at work due to their sexual orientation.  Between 75 and 82 percent of Asian and Pacific Islander LGBT employees reported workplace discrimination as well.  Such discrimination can include the failure to hire or promote LGBT workers, workplace harassment, unequal wages, and the lack of on-the-job support – the same kinds of employment rights that other minority groups have been advocating for in the workplace for decades.

Despite these realities, according to data from the Human Rights Campaign, only 19 states currently have laws that prohibit workplace discrimination based on both sexual orientation and gender identity.  Another three states prohibit workplace discrimination based on sexual orientation, but not gender identity.  Ten states have employment protections based on sexual orientation and/or gender identity only for public employees, which does nothing for private sector workers.  And in 18 states, LGBT employees still have no employment protections at all.  That lack of protection is just another form of denying equality for employees.

The situation is even bleaker at the federal level, although progress is being made. Yet there is still no federal statute that protects employees based on sexual orientation or gender identity.  The proposed Employment Non-Discrimination Act (ENDA) that would prohibit such discrimination has been introduced in Congress each year since 1994, but has never mustered enough Republican support to make it to the President’s desk.  Last year, House Speaker John Boehner openly expressed his disapproval of ENDA, telling the LGBT Equality Caucus that there was “no way” the legislation would pass that year.  Boehner stated that the bill was “unnecessary” because “people are already protected in the workplace.” Boehner’s statement and others like it demonstrate just how out of touch key members of Congress are with the kind of discrimination LGBT workers face.

Gainful employment instills a sense of purpose and dignity, and increases meaningful contributions to our communities.  Our anti-discrimination laws are in place to correct the traditional exclusion of marginalized groups – such as women, older workers, and racial minorities – and to ensure equal employment opportunities.  It is time to fully add LGBT employees to that list.  Whether single or married, they should not be penalized in their careers or livelihood for exercising their right to work.

It’s time for Congress to pass ENDA at the federal level and for State legislatures to implement or expand laws to protect LGBT employees.  Work must continue in every arena, including in those States where there are already such laws, such as California, where agencies and attorneys should bring critical cases to strengthen enforcement.  Finally, businesses should work to create an inclusive workplace for LGBT employees through policies, practices, and training.  Many companies have already done so, but others continue to flaunt their willingness to discriminate.

As Justice Kennedy wrote in the Obergefell decision, in seeking the right to marriage, same-sex individuals asked “for equal dignity in the eyes of the law.”  We should continue to recognize this dignity by continuing to address the gap in legal employment protections for the LGBT community.

Lisa Mak

About Lisa Mak

Lisa Mak is an associate attorney in the Consumer & Employee Rights Group at Minami Tamaki LLP in San Francisco. She is passionate about representing employees and consumers on an individual and class basis to protect their rights. Her practice includes cases involving employment discrimination, harassment, retaliation, wrongful termination, labor violations, and severance negotiations. Ms. Mak is the Co-Chair of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, and an active volunteer at the Asian Law Caucus Workers’ Rights Clinic. Ms. Mak is a graduate of UC Hastings School of Law and UC San Diego. She is fluent in Cantonese and conversant in French.

With so many corporations coming out for LGBT rights, why are so many workers still in the closet? 1

With so many corporations coming out for LGBT rights, why are so many workers still in the closet?

charlotte pride photo.fixed

It is hard to deny the remarkable ascendance of LGBT rights over the past decade. But the breathtaking gains in marriage equality in all corners of the country have obscured the focus on at least one important arena where we still lack equality – the workplace.

A recent Human Rights Campaign survey details the experiences of LGBT people at work.  Perhaps most startlingly in an era when being out is in for LGBT celebrities, sports figures, and politicians the survey revealed that 53% of everyday LGBT folks are still fully or mostly closeted at work.  When polled about why they remain closeted, 38% of respondents cited the possibility of making others feel uncomfortable; 36% responded that they feared the possibility of being stereotyped; 31% feared losing connections or relationships with coworkers; and 23% anticipated being passed over for advancement or development opportunities.

LGBT workers who fear disclosing their sexual orientation or gender identity are probably pretty accurate in predicting how their co-workers might react.  Less than half of non-LGBT survey respondents said they felt comfortable hearing an LGBT coworker talk about their social life, dating, or a related subject, and more than 70% agreed that it would be “unprofessional” to talk openly about one’s sexual orientation or gender identity in the workplace. Of course, this is a standard that is not applied to straight workers, who routinely regale their closeted LGBT co-workers with stories about their opposite-sex relationships and social life.  Indeed, more than 60% of non-LGBT respondents reported that children, spouses, and social activities were indispensable topics of conversation in the workplace.

But this survey gives us more to worry about than how LGBT workers are censored in coffee room conversations.  Another finding is that more than one in five respondents had looked for alternate employment in order to avoid anti-LGBT hostility.  And nearly 10% of LGBT employees report they felt so much hostility at their workplace due to their sexual orientation that they had no choice but to leave their job.

The numbers are far worse for transgender workers: a report issued in 2011 by two LGBT rights organizations found that 90% of transgender people nationwide had experienced at least one form of harassment, physical assault, mistreatment, or sexual assault at work because of their gender identity.  And almost half have been fired, not hired or denied a promotion because of anti-transgender bias.

So what is to be done to turn the promise of welcoming workplaces into a reality?  Some might blame closeted employees for hiding their identities from co-workers, thus depriving co-workers of the opportunity to unlearn their stereotypes and bias.  However, the burden should not fall on LGBT employees to expose themselves to the very real risks of harassment, ostracism, job loss, or worse.  As has been the case in the marriage equality movement, coming out has an important role to play in making change in the workplace for LGBT people.  But it cannot happen without the protections of strong anti-discrimination laws and comprehensive employer policies that promote inclusion, train managers to combat harassment, and provide equal benefits for LGBT employees and their families.   In another post, I will be outlining how corporations can do just that.  As for passing laws to end employment discrimination and harassment against LGBT people, the prescription is simple — Congress should finally to pass the Employment Non-Discrimination Act!

Elizabeth Kristen

About Elizabeth Kristen

Elizabeth Kristen is the Director of the Gender Equity & LGBT Rights Program and a senior staff attorney at Legal Aid at Work.  Ms. Kristen began her public interest career as a Skadden Fellow at Legal Aid.  Ms. Kristen graduated from University of California at Berkeley School of Law in 2001 and served as a law clerk to the Honorable James R. Browning on the Ninth Circuit Court of Appeals in San Francisco.  In 2012-13, she served as a Harvard law School Wasserstein Public Interest Fellow.  She has been a lecturer at Berkeley Law School since 2008. Legal Aid at Work together with the California Women’s Law Center and Equal Rights Advocates make up the California Fair Pay Collaborative dedicated to engaging and informing Californians about fair pay issues.

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