All the recent coverage of gay marriage and “Don’t Ask Don’t Tell” fails to mention what’s possibly an even bigger issue for LGBTQ people: there’s no federal law banning employers from discriminating against workers on the basis of their sexuality or gender identity.
Some states and cities have passed their own laws banning such discrimination, but in 29 states it’s still legal to fire, demote, harass, or otherwise discriminate against someone just because they’re gay, lesbian, bisexual, or queer, and in 34 states it’s legal to do so only because they’re transgender.
States that prohibit discrimination based on sexual orientation and gender identity. (16 states and D.C.)
States that prohibit discrimination based on sexual orientation alone. (5 states) (from HRC)
So, if you’re a bartender in Texas and you get a new manager who decides you’re too flamboyant for the more macho image he’s looking for, he can fire you without question.
(If you’re being discriminated against or harassed at work because of your sexuality or gender identity and you do live in a state or city that has a law, you should contact your state’s anti-discrimination office to get more info on enforcing your rights at work)
You might say, “Oh, well there’s no law but I’m sure no one would actually do that. There are other laws protecting people from getting fired for no reason.” Wrong. Unless you’ve got a union contract , you’re an “at-will” employee, meaning your boss can fire you at any time for a good reason, a bad reason, or no reason at all. There’s a small list of things they can’t fire you for—your race, age, sex, disability status, opinion toward a union, etc.—but being LGBTQ isn’t one of them.
If you think anti-gay discrimination at work isn’t a big deal, you’re probably not LGBTQ and you probably work a middle or upper class job. Hotels and restaurants are intensely homophobic, and anyone who works in one hears LGBTQ people harassed and discriminated against daily. I’ve heard “fag” said more in kitchens than anywhere else.
Consider one study from the American Journal of Sociology. Two almost identical resumes were sent to around 1700 entry-level job openings. The only difference between the resumes is that one mentioned the applicant belonged to a gay organization in college, while the other listed an unoffensive organization as a control. The results showed that the resumes with the gay organization received a 7.2% callback rate, while those without the organization got an 11.5% callback rate. The difference in callback rates was much higher in states without anti-discrimination laws, like Texas, Ohio, and Florida. Remember: that difference occurred only from casually listing being a member of a gay organization. You can imagine how much greater the gap is when an interviewer decides an applicant “seems gay.”
In another study, the National Center for Transgender Equality conducted a national survey and found that 90% of transgender people harassment, mistreatment, or discrimination on the job.
And a heartbreaking example from the Human Rights Campaign:
"Kimya has a master’s degree in social work and nearly two decades of experience in the field. She was the manager of a unit of a long-term care facility for sufferers of Alzheimer’s and dementia. She enjoyed her job, and was good at it, but suffered through nearly a year of threatening messages, vandalism to her car and slurs uttered in the halls. In 2003, she was fired, her supervisors telling her, "This would not be happening if you were not a lesbian." Kimya sought out legal help, but quickly learned that nothing in Michigan law protected her from being fired because of her sexual orientation."
There’s a bill in congress right now, the Employment Non-Discrimination Act (ENDA), that would ban discrimination based on sexuality and gender identity. In fact, it’s been proposed in congress every year (except once) since 1994 and has somehow been shot down every time. The current EDNA bill has been expanded to include protections for transgender people and has been proposed in the house by Rep. Barney Frank and in the senate by Jeff Merkley.
Laws don’t end discrimination. Discrimination based on race and sex obviously continues despite laws against it. But the law gives us another tool, and we need every tool we can get.
Oklahoma Rep. James Lankford came under fire last week for opposing ENDA and similar state bills. He stated that he believed you should be able to be fired for your sexuality because “it’s a choice issue.” In a later interview he clarified his position, adding, “I just don’t think you [should] have special protections based on behavior.” You can send a message to Rep. Lankford here.