The Effects of Employment Discrimination on LGBT Individuals

The following three sources combine a mixture of theoretical, statistical and exemplary information about the current state of discrimination against LGBT individuals in the workplace. These sources help support our cause to promote to enactment of ENDA by providing a historical and political background of the issue, discussing the effects of workplace discrimination on the psychological and physical well-being of LGBT individuals, and recounting the personal stories of American citizens that have been fired due to their sexual orientation or gender identity.

1. Burdge, Barbara J. “Legal Discrimination against Lesbian, Gay, and Bisexual Employees: A Multi-Theoretical Model to Explain an Elusive Civil Rights Law.” Journal of Policy Practice 8.1 (2009): n. pag. Academic Search Premier. Web. 6 Apr. 2013.

In her article, Burdge offers a multi-theoretical approach – exploring value, historical, institutional and critical perspectives – to explain the many factors that play into the denial of workplace protections for LGB individuals. She defines this discrimination as a human rights issue that violates the equal protection of the law promised in the Universal Declaration of Human Rights. Burdge concludes that this failure to provide LGB citizens with basic workplace protections “violates core principles of justice, including equality and human dignity, as it leaves LGB persons at risk for economic deprivation and social segregation” (17).

This article is useful for our efforts to promote ENDA because it covers all of the diverse factors that are at play in workplace discrimination against LGB individuals. For example, Burdge explores opponents’ arguments against ENDA, including those that believe ENDA would give LGBT individuals “special rights” and those that believe that LGBT individuals choose their lifestyle (14). It is important for us to understand the arguments of opponents so that we can effectively refute these arguments and frame our own arguments in a proper way.

Burdge references many different scholarly sources throughout her paper. One idea that she only briefly touches on in her paper is the economic effect of workplace discrimination. She references a 2004 paper by Lind called “Legislating the family: Heterosexist bias in social welfare policy frameworks” that could provide insight into these financial obstacles. Burdge briefly mentions Lind’s argument that in order for LGBT individuals to have financial success, they might have to sacrifice their identity and be willing to “pass” as straight in the workplace (6). This idea of “passing” and the need to keep identity hidden could be an interesting idea to explore further as we advocate for the passage of ENDA.

2. Gates, Trevor G. “Why Employment Discrimination Matters: Well-Being and the Queer Employee.” Journal of Workplace Rights 16.1 (2011): n. pag. Academic Search Premier. Web. 6 Apr. 2013.

In his paper, Gates discusses how workplace discrimination can harm the psychological well-being, subjective well-being and overall health of LGBT individuals. Because work is a deeply interwoven aspect of American life, Gates argues that this type of discrimination is detrimental not only financially, but psychologically and socially as well. Further, he argues that this type of discrimination constitutes a human rights violation based on Article 23 of the Universal Declaration of Human Rights which states that “[e]veryone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment” (Gates 109).

This source will help us promote the passage of ENDA because it explains how this issue is not limited to the economic stability of LGBT citizens or the temporary effects of workplace discrimination. This problem is more serious and urgent because it can have long-lasting effects on the well-being of many LGBT citizens. Gates also explores how this issue extends farther than just instances where LGBT individuals are fired; for LGBT citizens that do remain employed, they may face long-term discrimination within the workplace if they are disregarded for promotions or face daily harassment from coworkers.

Gates includes many insightful resources in his paper that might shed more light on the problems associated with employment discrimination. One source that might provide more statistical information and examples of employment discrimination is a 2007 paper by Badgett, Lau, Sears and Ho called “Bias in the workplace: Consistent evidence of sexual orientation and gender identity discrimination.”

3. Hodrick, Courtney. “5 People Who Were Fired for Being Gay, and the 29 States Where That Is Still Legal.” PolicyMic. N.p., n.d. Web. 6 Apr. 2013.

In this article, Hodrick tells the stories of five Americans from five different states across the country who were fired from their jobs for being gay or transgender. These individuals were not fired due to their job performance; rather, many of them were fired soon after revealing their sexual orientation or gender identity to an employer. All of these instances were fairly recent – between 2007 and 2012 – which shows the prevalence and urgency of this issue. Hodrick also includes a map that shows the 29 states where people can still be legally fired for being gay. The map is overwhelmingly covered in red states and shows just how widespread this problem of discrimination is.

By providing readers with personal testimonies of qualified individuals who were fired solely because of their sexual orientation or gender identity, this source offers more than just theoretical or abstract effects of workplace discrimination. This source is helpful in promoting the passage of ENDA because it gives these victims names and faces that people can relate to and understand. Readers can put themselves in the shoes of these individuals and really imagine the impact that the lack of workplace protections has on LGBT individuals.

This article links to other useful sources that go into more depth about each of the personal stories. These supplemental sources could be helpful in giving us more thorough information and background for these cases of workplace discrimination. Also, Hodrick provides a link to an article that summarizes studies about employment discrimination done by the Williams Institute on Sexual Orientation Law and Public Policy. This other article offers statistical data and scientific research to accompany these personal stories.

Helpful Resources

1. Hunt, Jerome. “A History of the Employment Non-Discrimination Act.” Americanprogress.com. Center for American Progress, 19 July 2011. Web. 01 Apr. 2013. <http://www.americanprogress.org/issues/lgbt/news/2011/07/19/10006/a-history-of-the-employment-non-discrimination-act/&gt;.

To understand why the passing of ENDA is so important, it is also important to understand what lead up to this act. Jerome Hunt provides an excellent background in his article, “A History of the Employment Non-Discrimination Act.” He discusses progress that has been made with the repeal of “Don’t Ask, Don’t Tell” and the repeal of Defense of Marriage Act, as well as the passing of gay marriage laws in many states. Ending discrimination is the next step in this journey to equality. This article also discusses past attempts to pass ENDA as well as the Equality Act of 1974 and why it isn’t enough to protect employment discrimination. At the very bottom of the page, there are other sources and people who you can contact for further information about ENDA and it’s journey.

2. “Employment Non-Discrimination Act (ENDA).” Thetaskforce.org. National Gay and Lesbian Task Force, 2013. Web. 02 Apr. 2013. <http://www.thetaskforce.org/issues/nondiscrimination/ENDA_main_page&gt;.

The National Gay and Lesbian Task Force is just that, a task force to protect the rights of gay and lesbian people in America. There is a lot of information about various LGBT civil right issues, including a section on ENDA. They discuss what ENDA is, why it is necessary, a brief history, and how we can help to accelerate this movement. At the end of this article, there is an option to sign their petition for the movement, to make a donation for the cause, and to apply for a membership for the website.

3. “Stop ENDA.” FightENDA. FRC Action, 2010. Web. 01 Apr. 2013. <http://www.fightenda.org/&gt;.

Even though there are many people who endorse ENDA, there are also organizations that oppose it; The FRC Action is one of these organizations. Although this blog is dedicated to supporting the cause, it can be helpful to be aware of the opposing side as well. The website provided below shows the rationale behind the “stop ENDA” cause, a plea to the members of congress and President Obama to not pass this act, and the dangerous of passing ENDA. This opposing side’s main concern seems to be protecting the religious rights of workers, claiming that Employment Non-Discrimination Act infringes on the religious rights of employees. At the bottom of the website there are a few news articles for more information.

Discrimination for any reason is not okay

Since 1964 it has been illegal to discriminate on the basis of race, color, religion, sex or national origin. The passing of The Civil Rights Act of 1964 ensured at a Federal level that a person would not be subjected to such discrimination. The passing of this act was, and remains, a landmark decision that changed, for the better, the lives of many U.S. citizens.

All citizens should be able to live their lives without the fear that they will be subjected to discrimination or fewer rights than other citizens. This is especially true for characteristics that are inherent to who a person is. A person cannot control the race, sex, or national origin that he or she was born with. Why should a person be punished for something that is beyond his or her control?

Today, even with The Civil Rights Act of 1964, certain citizens are still being discriminated against. Lesbian, gay, bisexual, and transgendered (LGBT) workers currently have no federal protection against discrimination based on sexual orientation and gender identity.

For those who consider gender identity and sexual orientation an attribute that a person is born with and is beyond his or her control, it only makes sense that employers should not be allowed to discriminate against employees based on a factor that the employee cannot control and that does not affect his or her ability to perform the required job tasks. Those who argue that a person’s sexual orientation and gender identity are simply a personal choice should also agree that such choices are not a valid reason to discriminate against workers since a person’s religion is a personal choice that one is not born with and currently employers are not able to discriminate based on religion either. Clearly, whether or not a person feels that gender identity and sexual orientation are innate or simply a lifestyle choice does not affect whether or not it is wrong for employers to discriminate against a person.

The ACLU comments on its site in support of  the Employment Non-Discrimination Act (ENDA) that “Over the years, Congress has responded when it found that people were not being hired or promoted for unfair or arbitrary reasons, such as race, gender, national origin, or disability. When Congress has found such discrimination, it passed laws to restore civil rights by ensuring arbitrary considerations do not determine access to employment.”

Currently, employers are not universally obligated to stop discrimination based on a person’s sexual orientation and gender identity. This discrimination can and does occur, affecting the lives of citizens. According to a report by The National Center for Transgendered Equality and the National Gay and Lesbian Task Force, “Forty-seven percent (47%) said they had experienced an adverse job outcome, such as being fired, not hired or denied a promotion because of being transgender or gender non-conforming. Over one-quarter (26%) reported that they had lost a job due to being transgender or gender non-conforming and 50% were harassed.”

Something needs to be done to ensure that the rights of these citizens are not infringed upon in the workplace. Passing ENDA would prohibit employment discrimination of LGBT persons on a federal level.

“Good” Discrimination

Opponents of ENDA, such as Peter Sprigg, the Vice President for Policy at Family Research Council (FRC) in D.C., have brought up the idea of a “right” kind of discrimination. In his post on the FRC website, Sprigg mentions that the bill’s advocates rely heavily on discrimination as an “unmitigated evil.” He suggests a different, more literal definition of discrimination. He defines discrimination as making a distinction between things. Given this definition, he explains that employers do “discriminate” all the time and even do so necessarily. Sprigg argues that instead of condemning all forms of discrimination, some should be allowed. He claims that, more importantly than protecting rightful citizens, ENDA deprives employers of a measure of freedom.

An editorial written by the Washington Times in 2010 invokes a similar definition for discrimination. The author claims that, “On some matters, it is good to be discriminating….it assuredly is right to be discriminating in choosing who teaches our children.” I agree. We should certainly keep checking the backgrounds of candidates before we hire them to teach in our schools. But this is not the “discrimination” that advocates of ENDA are talking about. The denotative definition of discrimination is not enough for this issue. Both Sprigg and the author of this editorial wrongfully ignore the connotative definition. The reality is that discrimination today and throughout history is not so neutral; it does not just mean drawing a distinction between things. The discrimination that is truly problematic and which ENDA is trying to fix is the prejudicial, harmful mistreatment of a class of citizens based on certain traits deemed inferior or abnormal – such as sexual orientation or gender identity.

ENDA’s aims and provisions are very similar to those of the Civil Rights Act of 1964, which Sprigg accepts. He claims that in comparison to the types of discrimination addressed by the Civil Rights Act – which included centuries of slavery and segregation for African Americans and the denial of the right to vote for women – “[h]omosexuals can claim no comparable disadvantage.” Why are gay citizens so different? The discrimination that African Americans and women faced in the workplace before the Act was passed is the same discrimination that gays face now. In effect, gays are also segregated in society as they are largely unable to occupy the same work-space as straight Americans. Further, outside of the workplace, gays face similar struggles as these other groups. Many gay adolescents are constantly bullied at school and many gay couples are still unable to attain a marriage license or federal marital benefits. How is this type of discrimination significantly different from the discrimination faced by other groups of Americans throughout history?

The difference, according to Sprigg, is that the Civil Rights Act protects against discrimination based on inborn or Constitutional characteristics, such as race and sex. However, in regard to ENDA, Sprigg explains that homosexual behavior does not meet these criteria. Sprigg is right; there is no reason for there to be legal protections for practicing homosexual behavior within the workplace. For that matter, there shouldn’t be legal protections for practicing heterosexual behavior within the workplace either. Sprigg’s understanding of ENDA and the desires of gay and transgender citizens are inaccurate. ENDA will not lead to “sexualization” of the workplace because it does not introduce a right to act sexually in the workplace. Gay and transgender citizens are not asking to behave homosexually in the workplace; they are asking that their sexual orientation does not affect their treatment in the workplace. The enactment of ENDA will not lead to increased instances of employers walking in on two gay employees having sex at work. Offices around the country will not turn into a reenactment of the Rocky Horror Picture Show. That type of behavior would still be unacceptable in the workplace, whether it was between two men, two women, or a man and a woman.

The author of the Washington Times editorial demonstrates a similar fear about what the workplace will look like after ENDA. The author suggests that, with the passage of ENDA, classrooms will be occupied by “a ‘she-male’ who insists on exposing her pupils to her unnatural transformation.” Again, this is a misinterpretation of what gay and transgender citizens are asking for. Gay and transgender citizens are not “insisting” on “exposing” their “unnatural transformation[s].” Rather, they are asking that these parts of their identities do not come in the way of their work. They want to be able to assimilate into the workplace just as straight employees do. It is not a matter of flaunting their sexual orientations or gender identities in the workplace; it is simply a matter of not having to hide these things in fear of discrimination.

Prima Facie Argument

Currently, there are no federal protections for LBGT citizens in the American workplace. While the Civil Rights Protection Act of 1964 prohibits employers from discriminating against individuals on the basis of their “race, color, religion, sex, or national origin”, it does not include sexual orientation and gender identity. Thus, on the federal level, it is perfectly legal for employers to discriminate against a gay or transgender employee. For no reason other than their sexuality or gender identity, LGBT citizens can be legally fired or bypassed in the hiring process; they can receive inferior treatment or harassment within the workplace; and, they might be offered inadequate compensation for their work or have trouble being promoted to a higher position.

Though some states have passed laws prohibiting this type of employment discrimination, in 29 states it remains legal to discriminate based on sexual orientation, and in 34 states to do so based on gender identity. While the state activity is promising and encouraging, it is not enough. Without federal protection, this problem of discrimination still exists nationwide as LGBT citizens across the country face social, financial and psychological struggles. Employment is important not only for economic stability and survival, but also in order for American citizens to have a sense of community belonging. It is an aspect of American society that is deeply interwoven into our everyday personal and family lives. Thus, the current lack of protections for LGBT citizens hinders their ability to establish themselves financially, makes them out to be second-class citizens, and harms their perceptions of self-worth. Qualified LGBT citizens might be bypassed for jobs, struggle to support themselves and their families, or suffer from harassment on an everyday basis at work. In turn, companies might lose out on outstanding contributions from LGBT citizens, and the American community will remain stuck in an era of intolerance and ignorance.

The solution to this problem of discrimination in the workplace is the passage of the Employment Non-Discrimination Act (ENDA). The federal government must pass this act to ensure legal protections for LGBT citizens in the workforce, just as they did with the Civil Rights Act of 1964. According to the Human Rights Campaign, ENDA:

“would provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity….The bill is closely modeled on existing civil rights laws, including Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. The bill explicitly prohibits preferential treatment and quotas and does not permit disparate impact suits.”

Thus, this act would prohibit employers from discriminating against individuals on the basis of their sexual orientation or gender identity with regards to hiring, firing, promotion or compensation. It also importantly does not interfere with religious organizations since the act might not be compatible with their beliefs and foundations. It respects the separation of church and state, and provides protection for both LGBT citizens and religious citizens.

ENDA has been introduced into Congress multiple times since its conception in 1994. It was most recently introduced into the 112th Congress in 2011, and it is expected to be reintroduced into the 113th Congress soon. We believe that ENDA will solve this problem of workplace discrimination by expanding the civil rights protections that have been established for most Americans for decades to another class of American citizens: gay and transgender citizens. It will give these citizens rightful federal protections while also acknowledging the LGBT community as an equal class of citizens in the workplace. Not only is this important legally, but it will also be important socially. By establishing legal protections for LGBT citizens, the federal government can help foster community acceptance of the LGBT community and de-stigmatize homosexuality and transexuality.