The Unprotected Class: Filling the Gaping Hole in Anti-Discrimination Labor Laws

Feb 21, 2012Tyler S. Bugg

genderless-icon-144Ending discrimination based on sexual orientation and gender identity will create a fairer society and a more productive workplace.

Employment discrimination has a long legacy -- and continues to be a widespread problem -- in the job market. In response, federal legislation has offered what seems a comprehensive body of protections. Among them, the milestone Civil Rights Act of 1964 protects classes of "race, color, religion, sex, and national origin," the Age Discrimination in Employment Act of 1967 (ADEA) protects individuals ages 40 years or older, and the Americans with Disabilities Act of 1990 protects qualified individuals with disabilities, among others. These federal laws have also set solid precedent for state-level anti-discrimination laws.

There is a gaping hole, however. Protections for sexual orientation and gender identity are missing in federal legislation and in much of state law, to the detriment of an ever-diversifying citizenry and job market.

The need is clear. Several studies by the Williams Institute have found that as much as 68 percent of LGBT respondents have experienced workplace discrimination. The impact is undoubtedly wide; reports of discrimination based on sexual orientation nationwide are roughly equal to those based on race and gender. Discrimination against sexual orientation and gender identity is equally as pervasive as that against classes already protected under federal law. It should enjoy the same protections.

The public is demanding more protections. A 2007 Gallup poll reported that 89 percent of Americans believed gays and lesbians should have equal rights in the workplace. And these protections benefit employers. Human Rights Campaign's "Corporate Equality Index" finds that companies that add anti-discrimination protections into their policies significantly benefit from doing so. Potential employees experience higher security and comfort in their job searches, the careers they choose, and the resources their employers offer -- things like inclusive health benefits, support groups, and diversity councils, among others. Employers, as a result, hire the most qualified people for the job, and the broader economic outlook is positively fostered through effective employee-employer relations.

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The need for adding these protections hasn't gone completely unnoticed. According to the American Civil Liberties Union's Lesbian, Gay, Bisexual, & Transgender Project, 21 states and D.C. have added classes of sexual orientation to fair employment law. Fifteen of those states have also instituted protections based on gender identity. A sizable portion of the states are taking initiative and rallying in support of more inclusive policies. Their actions are a running start for what should be a huge leap for a nationwide commitment for broader equality.

Federally, the Employment Non-Discrimination Act (ENDA), a bill proposed in Congress, seeks to add federal protections against employment discrimination on the basis of sexual orientation and gender identity. It aims to eliminate the disadvantaging of lesbian, gay, bisexual, and transgender people in applying for and receiving jobs based on their identity. Guarding against unfair hiring, firing, promotion, and compensation practices, ENDA ensures a greater level of workplace equality.

This would clearly address the need for comprehensive protection. A long history of congressional bodies, however, thinks otherwise. Congress has reintroduced, but never passed, ENDA in each and every year since 1994. And despite White House support, the bill's acceleration towards passage is slow.

Even if ENDA passed, we also need a stronger Equal Employment Opportunity Commission and more proactive, more transparent reporting mechanisms. Effective enforcement policy -- including an expressed maximum number of days that can pass before a filed complaint is heard or a minimum amount of compensatory damages guaranteed to a target of discrimination -- is the most crucial tool of deterrence against future and continuous workplace discrimination.

A worker's contribution does not depend on any certain notion of sexual orientation, gender identity, or any other identity factor. All people, regardless of how they conduct their private lives, can be valuable assets to the workplace, the economy, and our larger society. In short, broader inclusion is both good business and good principle. It enables employers to recruit the most competitive talent for the job, regardless of an applicant's identity, and allows the workplace to be a rigorous example for promoting principles of inclusion, fairness, and equality.

Labor protections for sexual orientation and gender identity are, most directly, a crucial step for ensuring a more equitable workplace environment. But ultimately, they would set a much broader precedent for progressive inclusion in other areas of discrimination law -- college admissions, health and insurance benefits, and marriage equality, to name a few.

Tyler S. Bugg is an Organizing Fellow with Obama for America and a member of the Roosevelt Institute | Campus Network studying international affairs and human geography at the University of Georgia.

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