About half of LGBTQ people in the U.S. – 52% – live in states where they could be fired, nixed for a promotion, refused training or harassed at their jobs, all because of their gender identity and sexual orientation.
It is a number that comes as a thunderbolt to many who assume in 2019 laws are more inclusive, rights advocates say – and it underlines the urgency of a trio of cases the Supreme Court is weighing Tuesday that could guarantee federal protections for LGBTQ workers nationwide.
“Most Americans are shocked to learn that we lack explicit laws protecting LGBTQ people from being fired for who they are or who they love,” said Naomi Goldberg, policy research director for the Movement Advancement Project (MAP), a think tank that maintains a database on laws affecting LGBTQ people. “The fact that 52% of LGBTQ adults live in states without explicit protections means that the cases before the Supreme Court are even more consequential.”
In cases viewed by some as monumental as the 2015 gay marriage ruling, justices will hear challenges from New York, Michigan and Georgia involving workers who say they were fired because they were gay or transgender. The cases center on whether Title VII of the Civil Rights Act of 1964, which outlaws employment discrimination based on race, color, religion, national origin and sex, prohibits bias against LGBTQ people.
While Title VII doesn’t explicitly cite sexual orientation or gender identity as separate protected categories, certain federal and state agencies, some courts – and significantly, the Equal Employment Opportunity Commission – have recognized Title VII’s protections against “sex” bias as applying to LGBTQ people.
Right now, LGBTQ people – even in states that haven’t outlawed discrimination – can seek recourse for workplace discrimination through the EEOC.
But if the Supreme Court rules LGBTQ people are not protected, it would “invalidate the EEOC’s current practice of accepting and processing” bias charges, said Greg Nevins, senior counsel at Lambda Legal. The EEOC “will proceed according to how the court rules.”
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How many people are affected?
About 4.5% of the U.S. population identifies as LGBTQ or an estimated 11 million people, of which 88% are employed, according to a 2018 report by MAP and the National LGBTQ Workers Center.
If the court rules that LGBTQ workers are not protected under Title VII, rights advocates fear the same reasoning will also upend other protections nationwide.
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“The stakes in these cases for LGBTQ people couldn’t be higher,” Goldberg said. “That’s because there are many places in federal law where discrimination based on sex is prohibited – in housing, education, health care and credit.” If the court doesn’t affirm Title VII protections, much is at risk, she said.
And, on the flip side, if the court affirms rulings from the EEOC and various appeals courts, the decision would permeate other areas, she said. “It would be important for creating clear, national understanding that discrimination against LGBTQ people is illegal.”
What protections are in place right now?
A jumbled patchwork of state laws, local ordinances and conflicting court rulings now make up the discrimination rulebook.
Only 21 states, the District of Columbia and two territories (Guam and Puerto Rico) have laws on the books explicitly banning bias in the workplace based on sexual orientation and gender identity.
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New York became the latest state in January to add gender identity to its anti-discrimination laws, which cover employment, after a years-long effort. The state passed the Sexual Orientation Non-Discrimination Act in 2002, but a gender non-discrimination bill never followed until this year.
More than 280 city and county ordinances also ban discrimination – and those should not be overlooked, rights advocates say. For example, about 60% of people in Florida, a state lacking explicit bias laws, live in cities or counties with local employment protections, according to MAP.
What is the current landscape for protections?
The situation is complicated, Goldberg said. Because laws differ from state to state, a worker could be fired in one state, protected in another. EEOC rulings also aren’t always binding on small, private employers; there are court decisions that lack agreement.
And sometimes state human rights commissions weigh in. For example, Michigan’s non-discrimination law doesn’t explicitly cite sexual orientation or gender identity, but the Michigan Civil Rights Commission has stated it interprets the state’s laws to include protections for both.
“Currently some federal appeals courts have ruled that yes, discrimination based on gender identity is illegal … or yes, discrimination based on sexual orientation is illegal … or no, neither is prohibited,” Goldberg said. A Supreme Court ruling that Title VII prohibits workplace discrimination on the basis of sexual orientation and gender identity would provide blanket protections and clarity, she said.
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How common is discrimination?
Twenty-five percent of LGBTQ people reported experiencing discrimination based on sexual orientation or gender identity – half of whom said it negatively impacted their work environment, according to the 2018 MAP report.
Twenty-seven percent of transgender workers reported being fired, not hired or denied a promotion in 2016-2017, the report says.
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And about half of the more than 9,000 LGBTQ-related claims filed with the EEOC from 2012-2016 were from states lacking explicit protections for LGBTQ workers.
Could existing protections be overturned?
If the Supreme Court rules that Title VII does not protect LGBTQ workers, the decision will not remove any existing employment protections for the 48% of the LGBTQ population in states with protective laws. The decision also will not thwart any local ordinances banning workplace bias, nor will it change state court interpretations of state sex discrimination laws, according to MAP.
But with the EEOC no longer being able to validate such discrimination charges, half of LGBTQ workers would become even more vulnerable, advocates say.
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Above all, what is needed is the passage of the federal Equality Act, regardless of how the court rules, says Lambda Legal’s Nevins. The act, which passed the House earlier this year, will assure “all the protections the court can provide and more,” in employment, housing and beyond, he said.
Still, a Title VII victory would be pivotal. “It will confirm a basic truth: that anti-LGBTQ discrimination is sex discrimination,” he said.
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