BBC Capital

Generation Work

Gay employees accepted, but not protected, at work

About the author

Ronald is a freelance writer and editor and the author of eight books, including his latest, The Trophy Kids Grow Up: How the Millennial Generation is Shaking Up the Workplace. Previously, Ronald had a long career as an editor and columnist at the Wall Street Journal.

Activists hope to revive US anti-discrimination legislation. (Mark Wilson/Getty Images)

US activists hope to revive workplace anti-discrimination legislation for gays, lesbians. The issue of gay marriage is now before the US Supreme Court. (Mark Wilson/Getty Images)

Gay rights advocate Tico Almeida wasn't yet born in 1974 when the first bill to prohibit employment discrimination against gay men and women was introduced in the United States Congress. Although it was an era when women and minorities were starting to make strides in the workplace, the anti-discrimination legislation died in Congress that year — as it has many times since.

Now, nearly 40 years later, Almeida is helping lead the campaign to once again try to pass the Employment Non-Discrimination Act (ENDA), which today would cover gender identity as well as sexual orientation. The proposed law would prohibit most employers from using an individual’s sexual orientation or gender identity as the basis for hiring, firing, promotion, compensation and other workplace decisions.

"It's astounding that we're still fighting for this," said Almeida, the founder and president of the advocacy group Freedom to Work.

The United States is lagging behind much of the Western world. More than 50 countries, including most of Europe, have enacted national laws protecting employees from discrimination based on sexual orientation, according to the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA). In other regions, such countries as Canada, New Zealand, South Africa, Israel, Colombia and Costa Rica also prohibit workplace bias. As for gender identity, ILGA counts about 20 countries, primarily in Europe, that bar employment discrimination.

Even as same-sex marriage has gained more support in the US and is the subject of two major Supreme Court cases to be decided this month, one of the most basic protections still remains out of reach for many lesbian, gay, bisexual and transgender (LGBT) employees. Some states, local governments and the District of Columbia have outlawed employment discrimination based on sexual orientation and gender identity, but gay workers in 29 states and transgender employees in 34 states lack such legal protection.

While marriage equality is certainly a worthy goal, employment security seems even more vital. After all, not everyone wants to get married, but virtually everyone needs a job. "Marriage equality is like the cart before the horse in many respects," said Teddy Witherington, chief marketing officer at Out & Equal Workplace Advocates. Without a state or federal law barring workplace discrimination, some gay employees could find themselves in the awkward position of getting married but feeling reluctant to tell their bosses or invite co-workers to their weddings.

Witherington pointed out, for example, that a gay man getting married and living in Maryland but working in nearby Virginia could conceivably be fired — without any legal recourse — if he announced his nuptials at work. "You could end up with this schizophrenic, ludicrous situation," he said.

The opposition to ENDA in Congress runs counter to public opinion — and to changing norms in some of the country’s largest workplaces. Nearly three-quarters of US voters favour protecting LGBT individuals from workplace discrimination, according to a 2011 survey by the Center for American Progress, a left-leaning think tank. But ENDA hasn't generated the same degree of enthusiasm as same-sex marriage. That may be partly because many people, including some gay men and women, mistakenly believe there already is a national non-discrimination law on the books. In fact, nine out of 10 respondents were under that impression in the Center for American Progress survey.

Some opponents maintain that ENDA could subject employers to expensive litigation. Yet, about two-thirds of small firms favour anti-discrimination laws for LGBT employees, according to a recent survey of 508 companies by Small Business Majority, an advocacy group for small-business interests. What's more, nearly 90% of Fortune 500 companies already have their own policies prohibiting discrimination based on sexual orientation, while 57% also include gender identity.

Businesses say such policies help them recruit top talent and foster a more productive work environment where employees feel safe and can focus on their jobs and tasks at hand.

“First and foremost, everyone should have equal opportunity to work and support their families, as well as the right to excel at their job without fear of discrimination; it’s simply the right thing to do,” said Tom Johnson, vice president of finance, global business services, at Clorox Co and the president of Out & Equal Workplace Advocates’ board of directors. “We and other companies also understand the business value of diversity and inclusion, which can bring different ideas to the table and help drive innovation.”

Nearly 100 major companies, including cleaning products manufacturer Clorox, have joined the Business Coalition for Workplace Fairness to show their support for ENDA. “While we and other companies have our own internal policies against discrimination, we want to provide some leadership on this issue through our public endorsement of ENDA,” Johnson said.

Until recently, ENDA lacked a dedicated lobbying organization like the ones that have promoted same-sex marriage and the repeal of the US military's "don't ask, don't tell" policy. That's why Almeida created Freedom to Work in autumn 2011, after having served as lead counsel on ENDA for a committee of the US House of Representatives. "I saw a vacuum in the LGBT movement," he said. “Now, we have a lobbying group specifically working on ENDA."

Emotions also may play a role in the fact that same-sex marriage overshadows employment equality these days. People naturally prefer to focus on the romantic rather than the unpleasant reality of workplace discrimination. "Workplace rights aren't as visceral or sexy as marriage, and they also aren't as visual for media coverage," said Josh Howard, who is producing and directing The Lavender Scare, a documentary about the US government’s Cold War campaign to fire federal employees it suspected were gay. "The details of an anti-discrimination bill are more complicated and not as visually interesting as same-sex couples on the steps of city hall getting marriage licenses."

ENDA’s chances for passage this year remain highly uncertain, given the divisive atmosphere in Congress. The current bill's inclusion of gender identity will probably make passage more challenging, but legal protection is especially important for transgender individuals who typically face even more workplace prejudice than gay employees.

Encouraged by the success of the same-sex marriage movement, ENDA’s supporters remain hopeful that “this time will be the charm,” as Clorox’s Johnson put it.

“People are discriminated against every day and fired simply because they’re gay, lesbian, bisexual or transgender,” he said. “We want lawmakers to understand that we think this is a very important piece of legislation.”

Nearly 90% of Fortune 500 companies already have their own policies prohibiting discrimination based on sexual orientation.