One of the first things I thought about after the U.S. Supreme Court declared same-sex marriage legal across the country was this: How horrible would it be to finally marry the person you love and then lose your job because the boss found out you’re gay.
You might have assumed gay and lesbian workers are protected from that kind of workplace discrimination, but in a majority of states — including Michigan — they aren’t. There is no federal nondiscrimination law that protects workers based on sexual orientation, and only 22 states and the District of Columbia have passed laws of their own.
Some cities and towns have enacted nondiscrimination ordinances that protect lesbian, gay, bisexual and transgender people, but even those have come under attack in recent years. In Arkansas and Tennessee, state legislators passed laws prohibiting such local nondiscrimination ordinances.
“We’ve got fairly massive evidence that discrimination against gay people is pervasive and has a substantial impact on them, so it’s very much of a concern,” said Andrew Koppelman, a professor of law and political science at Northwestern University. “Just eliminating open and notorious discrimination makes a big difference. And anti-discrimination laws are more effective in keeping people from getting fired than they are in preventing discrimination in hiring. When you apply for a job and didn’t get the job, who knows why you didn’t get it. But when you get fired, you usually know what that’s about.”
So where do things stand on federal employment protections for gay and lesbian workers? Greg Nevins, counsel and workplace fairness program strategist with the LGBT rights organization Lambda Legal, said his group and others are following two complementary paths.
On the legislative front, the federal Employment Non-Discrimination Act, which has been lingering in Congress for several years, has fallen out of favor with some activists because of broad religious protections that were introduced into the bill. The preference now, Nevins said, is to simply expand Title VII of the Civil Rights Act of 1964, which currently prohibits workplace discrimination on the basis race, color, religion, sex or national origin.
“The best outcome legislatively is to take existing federal nondiscrimination law and drop sexual orientation and gender identity into it,” Nevins said. “You’re not asking anything more than to be treated exactly as the other categories are treated. That makes the most sense.”
The judicial argument being made in various cases across the country is that Title VII, as it presently stands, should protect gay and lesbian people from workplace discrimination.
“If you fire a woman because she’s attracted to women but don’t fire the men who are attracted to women, that’s sex discrimination,” Nevins said. “We’re pushing for Title VII to be recognized as a law that already should protect people based on sexual orientation. We have protections, we just have to get the courts to acknowledge them.”
This two-pronged approach is similar to the one that led LGBT activists to marriage equality. They pushed on both legislative and judicial fronts.
I would like to believe that this issue — that it’s fundamentally wrong to fire someone for being gay or lesbian — would not require too much pushing. Even before a majority of Americans said they favored legalizing same-sex marriage, polls showed that people favored workplace discrimination protection for LGBT workers.
Now that same-sex marriage is legal, it seems the fact that gay and lesbian workers nationwide don’t have full protection from employment discrimination will be seen as increasingly absurd.
Corporations have made it clear that they want to operate in environments that are as open and welcoming as possible. For more on that, see how companies reacted when Indiana tried to put in place a religious freedom law that many believe would have opened the door for discrimination against LGBT people.
It wasn’t pretty, and state lawmakers quickly backpedaled and amended the law to say it couldn’t be used as a legal defense to refuse services, goods, facilities or accommodations.
There’s no question which side corporate America is on here, and the legalization of same-sex marriage just makes the move toward some form of nationwide protection for LGBT workers more inevitable.
Whether it comes state by state, or federally by judicial or legislative means, what I’d like to see is a guarantee that nobody in this country will get married and then lose a job because of who they married.
We should love who we want to love and be accepted at work for who we are, nothing more, nothing less. It’s a simple concept, really, but it’s taking us a frustratingly long time to get it right.
Rex Huppke writes for the Chicago Tribune.