“It is guys being macho,” said Jake, who wanted to withhold his last name so his employer could not identify him. “But it is still definitely something I have to be conscious and worried about. And with Ohio not having any laws protecting me, I am just afraid that if there was a confrontation, the company would let me go because it creates a hostile work environment.”
With all of the momentum behind same-sex marriage, the fact that many lesbian, gay, bisexual and transgender people lack a crucial yet basic protection often goes unnoticed: there is still no federal law that explicitly protects workers from job discrimination on the basis of their sexual orientation or gender identity.
“Where we are headed with marriage is fantastic, but at the same time, in over half of states you can be legally fired for being gay or transgender and no one is talking about that,” said Ineke Mushovic, executive director of the Movement Advancement Project, a research group that co-wrote a recent report about the job discrimination and the various financial inequities that gay people face in the workplace.
That means even if the Supreme Court were to declare that the law that denies same-sex married couples federal benefits was unconstitutional — it is expected to weigh in on the issue this month — such a decision could have a perverse effect: workers who may be permitted to add a same-sex spouse to a pension or a health plan, for instance, would be forced to expose their sexuality in a potentially hostile workplace to receive those benefits.
“As gay people are able to participate more in the normal activities and institutions of everyday life, their visibility in the workplace is more apparent and they are a more visible target for employment discrimination,” said Shannon Price Minter, a civil rights lawyer and legal director of the National Center for Lesbian Rights. “We are seeing people run into problems because of that or be fired.”
A patchwork of state and local laws, along with court and agency decisions, provides some protections. Twenty-one states and the District of Columbia prohibit discrimination based on sexual orientation, according to the June report, which was co-written by the Center for American Progress and the Human Rights Campaign.
Sixteen states and Washington, D.C., have expanded their laws to also protect workers on the basis of their gender identity and expression, which affects transgender people. Workers in any of these states can seek recourse and other penalties through state courts. Federal workers, meanwhile, are protected through an executive order and the vast majority of Fortune 500 companies have antidiscrimination policies of their own. Beyond that, many cities and counties have passed their own ordinances, though the researchers say in many cases that these measures either don’t really provide people with effective legal remedies or just fine the employer.
You might think that a discrimination claim based on a person’s sexual orientation would be covered under Title VII of the Civil Rights Act, which prohibits employment discrimination based on race, color, religion, sex and national origin and is enforced by the federal Equal Employment Opportunity Commission. And while some courts are beginning to issue more favorable decisions for gay and transgender workers by interpreting that law more broadly, advocates say that is a slow and expensive process with no guarantees.
A decision issued by the commission last year has offered support for transgender workers. Mia Macy, a former male police detective who transitioned to become a woman, was denied a job with the Bureau of Alcohol, Tobacco, Firearms and Explosives after she told the agency about her plans to change her gender.
So she filed a complaint and the Equal Employment Opportunity Commission ultimately found — relying on Supreme Court precedent and other cases — that discriminating workers on the basis of their gender identity was indeed considered discriminatory under Title VII because it penalizes them for failing to conform to gender stereotypes, explained Justine Lisser, a spokeswoman for the commission. And that type of bias is a form of sex-based discrimination. “While this ruling was issued in a federal sector case, its rationale is applicable to the E.E.O.C.’s private sector enforcement efforts,” she added.
The commission’s rulings may apply to public and private employers, but they are only binding for federal employers. It can also bring a case to Federal District Court on behalf of a worker, but it litigates only a small number of cases and does not have the authority to impose fines or mandate that employers follow a particular policy.
But the commission does tend to influence the courts. “Their interpretation of the law is taken very seriously,” Mr. Minter added. “It’s a big step for the E.E.O.C. to recognize that Title VII protects transgender people,” he said, noting that more courts are issuing rulings in their favor.
He also said that there were more positive court decisions for gay and lesbian workers, but it’s still early in the process. “There are a good number of court decisions using Title VII to protect gay or lesbian workers who were harassed at work and called names,” Mr. Minter said. “But what has been more challenging is to get courts to take the next step and recognize that a person who is fired for just being gay, even if there is no harassment, is also a type of sex discrimination.”
And that’s why many advocates, including the three groups in the research report, are calling for an explicit protection through a federal law.
“People should not be left in this prolonged limbo where they don’t really know if they are protected or not and in order to secure protection you will need to go through years of litigation,” Mr. Minter added.
Article source: http://www.nytimes.com/2013/06/01/your-money/protections-for-gays-in-workplace-are-piecemeal.html?partner=rss&emc=rss