Think you know about LGBT employment protections? Take this quiz and see how much you know. A new poll from the Center for American Progress shows that 9 out of 10 voters think there is a federal law protecting LGBT people from workplace discrimination. They’re wrong. The poll found that 73 percent of voters do support such protections, including strong support from Catholics (74 percent), senior citizens (61 percent), and even people with unfavorable attitudes toward gay people (50 percent). Unfortunately, in most states the protections don’t exist, and levels of discrimination and harassment are high.

As many as 43 percent of LGB people and a staggering 90 percent of transgender people have experienced workplace mistreatment. Another column from CAP shares some of the personal stories of individuals who had these negative experiences and the consequences that come with, such as the fact that gay men earn 10-32 percent less than their heterosexual peers (PDF). Meanwhile, transgender individuals are twice as likely to be unemployed and four times as likely to be living in poverty (PDF).

If support for protections is so strong and people think they already exist, it’s peculiar that employment protection bills face such challenges in getting passed. The federal Employment Non-Discrimination Act has been introduced for decades now without passing. Just last week, non-discrimination protections in Connecticut got a very transphobic pushback. Equality opponents raise alarm over these bills, focusing on nuanced details and promoting untrue fears. This new polling suggests that the number of people actually concerned about offering these protections is near-negligible. Legislators need to begin listening to the stories of those truthfully affected by discrimination instead of the absurd cries of a small pocket of extremists.

This Blog originally appeared in Think Progress on June 2, 2011. Reprinted with Permission.

About the Author: Zack Ford is an LGBT researcher/blogger for ThinkProgress.org at the Center for American Progress Action Fund. Prior to joining ThinkProgress, Zack blogged for two years at ZackFordBlogs.com with occasional cross-posts at Pam’s House Blend. He also co-hosts a popular LGBT-issues podcast called Queer and Queerer with activist and performance artist Peterson Toscano. Zack has a bachelor’s in Music Education from Ithaca College, where we served as student body president, a Master’s in Higher Education Student Affairs from Iowa State University, and also helped found the Central Pennsylvania LGBT Aging Network. Zack holds a B.M. in music education from Ithaca College and an M.Ed. in higher education (student affairs) from Iowa State University, but he’s originally (and proudly) from rural central Pennsylvania.

There is no federal statute prohibiting job discrimination based on sexual orientation or gender identity. A bill is on the horizon to change that, with a very good chance of passage. The Employment Non-Discrimination Act of 2009 (HR3017/S1584), introduced in various forms since 1974, would prohibit job discrimination based on sexual orientation or gender identity. It has 179 House co-sponsors and 40 Senate co-sponsors, and many more expected to support the bill.

Despite the arguments of opponents, the bill’s text is unremarkable in many ways. Similar to Title VII of the Civil Rights Act of 1964, the current job discrimination law, it also contains language to deal with issues specific to LGBT workers. As in Title VII, it covers employers with 15 or more employees and most government offices. It prohibits discharge, refusal to hire, and other discrimination based on “sexual orientation” or “gender identity,” as well as discrimination based on association with gay people.

The terms “sexual orientation” and “gender identity” are clearly defined, despite the concerns of opponents. “Sexual orientation” is defined in the bill as “homosexuality, heterosexuality, or bisexuality.” It’s specifically used in distinction to the more ambiguous term “sexual preference.” Opponents argue it could protect pedophiles, base on the false idea that pedophilia is a “sexual preference.” Since the term “sexual preference” is not used, and the term “sexual orientation” is very clearly defined, that argument is incorrect. Unfortunately, this been used as a fear-mongering tactic.

The term “gender identity” is defined as “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” This refers to the social, psychological and behavior stereotypes of our sex at birth. It protects workers from discrimination or harassment based on conformity with stereotypes of gender. For example, if someone born male expresses their gender in a manner stereotypically considered feminine, whether it be in mannerisms, appearance or, on the extreme end, identification with the opposite sex as a transsexual, they are protected from dismissal or harassment because of this. In other words, gender is removed as a job performance criterion.

Some are concerned that allowing transsexuals to have jobs will cause a burden on employers by requiring them to build separate shower and dressing facilities for transsexuals. However, the Act does not require employers to permit access to shared shower or dressing facilities where nudity is unavoidable. It specifically disavows the idea that construction of additional facilities are required.

Both terms, “sexual orientation” and “gender identity” have been used in many state and local laws since 1975, and are considered by legal experts to be well-understood in the legal context at this point.

Concerns about a “gay quota,” and a flood of lawsuits are equally unfounded. The Act explicitly bans any preferential treatment or quotas. The government may not require collection of statistics on sexual orientation or gender identity. “Disparate impact” lawsuits, often seen in the Title VII context, are not permitted under ENDA. Such claims are based on the allegation that employer actions have indirectly resulted in a reduced number of LGBT employees. Only the direct harm of “disparate treatment” lawsuits would be permitted.

Religious freedom is also addressed in the bill. The Act does not apply to organizations exempt from the religious discrimination provisions of Title VII. In his testimony at the Congressional hearing on September 23, 2009, Acting EEOC Stuart Ishimura stated his belief that this would exempt such religious organizations not only from penalties for discrimination on the basis of religion, as in Title VII, but also from all penalties under ENDA for any discrimination based on sexual orientation or gender identity.

The Act does not apply to members of the Armed Forces, and does not change special rights for veterans. It explicitly states that it will not invalidate other federal, state or local laws.

A hearing was held before the Committee on Labor and Education on September 23, at which many illustrious witnesses testified to the widespread extent of serious harm the current situation has caused for gay, lesbian, bisexual and transgender (LGBT) employees. The bill is expected to be voted on in the House in the next few weeks, where it is expected to pass. It will then go to the Senate, and a vote is expected there before year-end. President Obama has vowed to sign the bill.

About the Author: Dr. Jillian T. Weiss is Associate Professor of Law and Society at Ramapo College of New Jersey, and has consulted with many organizations on issues of transgender workplace diversity, including Boeing, Harvard and New York City.  She may be reached at jweiss@ramapo.edu

The Civil Rights Act of 1964 made sweeping reforms in employment discrimination law; making it illegal for an employer to discriminate on the basis of sex, race, color, religion or national origin, while other federal laws protect against age and disability discrimination.  These protections are still not extended to individuals on the basis of sexual orientation or gender identity.  Currently, there are three major bills pending passage that would work to amend this and grant equal protection to groups historically discriminated against in the workplace.

The Employment Non-Discrimination Act H.R. 3017 (ENDA) is a proposed bill in the United States Congress that, if enacted, would prohibit discrimination against employees on the basis of sexual orientation, gender identity, and disability. ENDA would extend these rights to individual employees in the private sector.  These protections are necessary as the absence of federal laws that consistently protects LGBT individuals makes it legal in 20 states to discriminate based on sexual orientation and in 13 states  to discriminate on the basis of gender identity or expression.

ENDA would provide basic protections against workplace discrimination on the basis of gender identity or sexual orientation.  ENDA is closely modeled on civil rights laws already in existence, such as Title VII of the Civil Rights Act of 1964 (prohibiting workplace discrimination based on race, color, religion, sex or national origin), and the American with Disabilities Act (ADA). 

ENDA would extend civil protections currently provided under Title VII of the Civil Rights Act of 1964 to include sexual orientation and gender identity.  It would prohibit both public and private employers from taking into account an individual’s sexual orientation or gender identity as the basis for employment decisions.  Additionally, ENDA would provide somewhat limited remedies for those employees who are discriminated against.

In order to address some concerns about its scope raised by its opponents, ENDA does not apply to religious organizations, cover businesses with fewer than fifteen employees, apply to members of the armed forces, allow for quotas or preferential treatment based on sexual orientation or gender identity, allow a “disparate impact claim,” allow the imposition of affirmative action for ENDA violations or apply retroactively.

Since 1994, ENDA has been introduced into every Congress (though without gender identity protection), though it has yet to pass.  In 2009, ENDA was introduced in the 111^th Congress in the House with 177 original co-sponsors. Senate introduction is expected to come shortly.

The Local Law Enforcement Hate Crimes Prevention Act of 2009 (LLEHCPA or The Matthew Shepard Act) is another bill currently before  the United States Congress that would expand the 1994 US federal hate-crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity or disability.  If passed, this law would grant the Department of Justice (DOJ), the power to investigate and prosecute bias-motivated violence by providing them with jurisdiction over crimes of violence that would include sexual orientation, gender identity or disability. 

The LLEHCPA was introduced in the 111^th Congress by Reps. John Conyers and Mark Kirk in the House, and the Matthew Shepard Act was introduced by Senator Edward Kennedy in the Senate.  The House passed the Act on April 29, 2009, and the Senate voted to proceed with the Matthew Shepard Act as an amendment to the Department of Defense Authorization bill on July 23, 2009.  The Senate and House versions must be reconciled before being sent to the President’s desk.

Finally, the Military Readiness Act (MREA) is also pending.  This bill is more controversial than the other two, as it attempts to overturn “Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass” (DADT)—the policy that prohibits gays from serving openly in the U.S. Armed Forces at the risk of being fired.  Under DADT, around 13,000 service members have been discharged since 1994 due to their sexual orientation. 

MREA would replace DADT and its requirements that those serving or wishing to serve in the U.S. Armed Forces neither disclose their sexual preferences, nor engage in homosexual acts with a non-discrimination policy.  MREA is slightly retroactive, as it allows former servicewomen or men discharged under DADT to re-enter the military.

MREA is currently in the House; there is no Senate bill at this time.

Workplace Fairness has set up an email action alert that allows you to contact your representatives and urge them to support the MREA.

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