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Time to End Sexual Orientation Discrimination in the Workplace

Employment Non-Discrimination Act is a Logical Next Step Following the End of the Military’s Ban on “don’t ask, don’t tell”

Last month the “don’t ask, don’t tell” policy was repealed by the military. Defense Secretary Leon Panetta said of the repeal: “Thanks to this change, we moved closer to the goal of the foundation of values that America’s all about: equality, equal opportunity and dignity for all Americans.” I have previously blogged about the unethical "don’t ask, don’t tell” policy that barred gays and lesbians from truthfully disclosing their sexual preferences while serving in the military. In this blog I look at discrimination due to sexual preference and urge recruiters and managers in the workplace to deep-six that policy as well.

Sexual orientation discrimination includes being treated differently or harassed because of your real or perceived sexual orientation -- whether gay, lesbian, bisexual, or heterosexual. This type of discrimination may be illegal in your workplace, depending on where you work.

Although federal laws protect people from workplace discrimination on the basis of race, national origin, religion, sex, age, and disability, there is no federal law that specifically outlaws workplace discrimination on the basis of sexual orientation in the private sector. (Federal government workers are protected from such discrimination.) Attempts to pass federal legislation that would outlaw sexual orientation discrimination in private workplaces have been unsuccessful to date, although more members of Congress support such a bill each year.

There is more hope at the state level. Almost half the states and the District of Columbia have laws that currently prohibit sexual orientation discrimination in both public and private jobs. In addition, a few states have laws prohibiting sexual orientation discrimination in public workplaces only.

If you are gay or lesbian and your state does not have a law that protects you from workplace discrimination, you may still be protected by city and county ordinances. Many cities and counties prohibit discrimination on the basis of sexual orientation in at least some workplaces.

Some forward-looking companies have adopted their own policies prohibiting discrimination based on sexual orientation. These policies prohibit such conduct and often provide disciplinary guidelines for dealing managers who discriminate, up to and including termination ofemployment.  

If no law prohibits sexual orientation discrimination where you work, there may still be hope. Depending on the exact nature of the discrimination, you may be able to sue your employer -- or your coworkers -- under a number of general legal theories, including:

  • intentional or negligent infliction of emotional distress
  • harassment
  • assault
  • battery
  • invasion of privacy
  • defamation
  • interference with an employment contract, and
  • wrongful termination.

For more information about your right to be free of workplace discrimination, see Your Rights in the Workplace. 

On November 8, 2007, The U.S. House of Representatives approved a bill granting broad protections against discrimination in the workplace for gay men, lesbians and bisexuals, a measure that supporters praised as the most important civil rights legislation since the Americans with Disabilities Act of 1990 but that opponents said would result in unnecessary lawsuits. The House introduced the first version of the Employment Non-Discrimination Act (ENDA) that included discrimination prohibitions on the basis of both sexual orientation and gender identity. Unfortunately, this inclusive version of ENDA died in committee. Rep. Barney Frank (D-MA) made a second attempt at moving the bill through, this time without the provisions protecting transgender workers from discrimination.

That year the House passed ENDA by a vote of 235 to 184. In the Senate, however, the bill was not referred to a committee or brought to the floor for a vote. ENDA likely failed to come to a vote in the Senate due to the exclusion of gender identity from Rep. Frank’s bill.

Following the 2007 House vote on ENDA, a general consensus emerged among advocates that all future versions of ENDA must include language that prohibits discrimination on the basis of gender identity. As such, members of the next Congress introduced ENDA in both the House and Senate that included both sexual orientation and gender identity in 2009.

Rep. Barney Frank (D-MA) and 148 co-sponsors (as of July 19, 2011) introduced the latest version of ENDA in the House in April of this year. Sen. Jeff Merkley (D-OR) and 39 co-sponsors (as of July 19, 2011) introduced a similar bill in the Senate around the same time. At the time of House introduction, Rep. Frank said that it is highly unlikely ENDA will pass during this Congress because of the House’s conservative makeup. But he stressed that it was important for advocates to continue educating lawmakers and the public about the problem of gay and transgender workplace discrimination to increase the bill’s chances of passing in future sessions of Congress.

With strong public support  for workplace discrimination laws to protect gay and transgender workers, it is time for Congress to finally move ENDA forward. Equal opportunity in the workplace for all should be a basic tenet that even the most ideologically divided Congress can agree upon. The rights of gay and transgender workers are just as valid as those of women who deal with sexual preferences and harassment in the workplace; those with disabilities who have been exposed to indignities; and others such as the aged. We are a nation built on the respect for human rights. We are quick to criticize other countries for their exclusive policies and human rights violations. It is time we walked the talk of being advocates for all human rights. Congress must step up to the plate  and pass ENDA to serve as a symbol for the rest of the world of what is best about America.

Blog posted by Steven Mintz, aka Ethics Sage, on October 14, 2011