WASHINGTON — Gay rights activists have made significant strides in recent years on marriage and military service, but one longstanding policy goal remains elusive: a federal law to ban discrimination against gay workers.
Gays now can serve openly in the military. Gay couples now have some form of legal recognition in 19 states and the District of Columbia. But in 29 states, gay workers can still be fired or denied promotions simply because they're gay.
To be sure, 21 states ban job discrimination based on sexual orientation, and all but five of those prohibit bias based on gender identity. Hundreds of cities and counties across the country have enacted nondiscrimination laws. Federal government employees are protected by a policy that prohibits discrimination based on sexual orientation and gender identity. And nearly 90 percent of Fortune 500 companies have their own nondiscrimination policies.
But some legal experts say workers and their employers need the kind of legal clarity that only a federal law can provide.
Just because municipalities and companies have nondiscrimination policies, it doesn't mean discrimination doesn't happen, or that an employee who experiences discrimination has any legal recourse."It's very important for the law to be clear and for both employers and employees to have clear rules in place," said Jennifer Pizer, the legal director for the Williams Institute, a research group that advances sexual orientation law and public policy at the University of California, Los Angeles.
A federal law to ban workplace discrimination based on sexual orientation has languished for years. The Employment Non-Discrimination Act was first introduced in 1994. The House of Representatives approved it in 2007 on a bipartisan vote, but the Senate never took it up.
On Tuesday, the Senate Health, Education, Labor and Pensions Committee will hold a hearing on the bill after four senators – Jeff Merkley, D-Ore., Bob Casey, D-Pa., Mark Kirk, R-Ill., and Susan Collins, R-Maine – wrote the committee's chairman, Sen. Tom Harkin, D-Iowa, to request the hearing.
"Employees should be judged on their skills and abilities in the workplace, and not on their sexual orientation or gender identity. While some states prohibit public and private employment discrimination on the basis of sexual orientation and gender identity, recent studies have found evidence of continued widespread employment discrimination against LGBT people," the senators wrote, referring to lesbian, gay, bisexual and transgender Americans.
Initially, Shari Hutchinson was thrilled when she started working for Cuyahoga County, Ohio, as a support officer in the child support office. The county, which encompasses Cleveland, prohibited job discrimination based on sexual orientation. So Hutchinson felt comfortable letting her co-workers know she was gay, and she brought her partner to work to meet everyone.
But soon after, a colleague pulled her aside and told her she wouldn't get promoted because she's gay.
"I thought, 'No, she can't be right,'" Hutchinson said. "I'm going to let my work speak for itself."
Hutchinson came into the job with a master's degree and 20 years of private-sector experience, yet she was denied promotion after promotion. She said some employees who should not have qualified for promotions were given them instead of her. Finally, she'd had enough.
"Obviously, being gay at the county was not a good thing," Hutchinson said.
Since Ohio lacks a nondiscrimination law that applied to her case, it took four years for a judge to determine that Hutchinson had a right to sue her employer, which fought her every step of the way. She was demoted, as were colleagues who tried to help her.
"It was indignity after indignity," she said. Finally, just before the case went to trial, the county offered Hutchinson a $100,000 settlement.
"I feel like in court we could have made a good showing," she said. "They didn't have answers."
But she didn't want any more agony for herself or her partner. "I was so beat down, I decided to take the settlement," she said.
Title VII of the 1964 Civil Rights Act explicitly bars discrimination based on race, religion and gender, but there is no consistent national policy on sexual orientation. Hutchinson's case shows why one is needed, Pizer said.
"It can be confusing for employers – they're looking to the federal government for the standard," she said.
That standard could come from Congress. While the country remains roughly divided on whether gay couples should have the right to get married, 71 percent of Americans favor laws that protect gay people against job discrimination, according to a poll last year by the nonpartisan Public Religion Research Institute. The same poll showed that three-quarters of Democrats and independents and 62 percent of Republicans favored such laws.
"Congress appears to be behind the American public on this idea," Pizer said.
The Employment Non-Discrimination Act would not apply to businesses with fewer than 15 employees, nor would religious institutions have to comply with it. It also would not require that any business offer equal benefits to gay couples, though many do already.
The current version of the bill would protect transgender workers as well. The bill has 41 co-sponsors in the Senate and 165 in the House, but many of those lawmakers are either retiring or lost primaries. Its lead House sponsor, Rep. Barney Frank, D-Mass., is not seeking re-election.
Some lawmakers, including Senate Minority Leader Mitch McConnell, R-Ky., oppose the legislation on the grounds that it would increase costs for businesses and lead more workers to sue their employers. Often, the U.S. Chamber of Commerce opposes any law that could burden companies. But on this one, it's officially neutral.
"Assuming the bill stays the same, we don't have any plans to weigh in for or against it," said Michael Eastman, the chamber's executive director of labor law policy.
Pizer said that the repeal of the military's "don't ask, don't tell" policy demonstrates that not having a nondiscrimination policy is costlier than having one. During the 18 years the military policy was in place, more than 14,000 personnel left the armed forces and took their talents and skills with them. The Government Accountability Office said last year that the policy cost the Pentagon roughly $53,000 per dismissal.
Discrimination is expensive, Pizer said, and that's why so many companies have decided they won't tolerate it.
"The reason American business leaders have been behind this for a long time is that people are there to get the job done," she said.
Under the current bill, religious organizations would be exempt from the law. In 2007, the U.S. Conference of Catholic Bishops dropped its opposition to the bill because of the exemption.
But in 2010, the bishops changed their minds. In a letter to Congress, they said that advocates of same-sex marriage would use the law as a justification for allowing gay couples to get married.
"The movement to redefine marriage to include two persons of the same sex . . . has changed the law substantially toward that end, at both the state and federal level, and it has become increasingly clear that laws like (the Employment Non-Discrimination Act) have been instrumental to those changes," the bishops wrote.
The movement toward marriage rights for gay couples has in some ways leapfrogged employment protections for gay workers. When the federal nondiscrimination law was first introduced, no state allowed gays and lesbians to marry. Now, six states and the District of Columbia do, and President Barack Obama said he supports marriage rights for gay couples.
"It is entirely conceivable that marriage will pull everything else along," said Tico Almeida, the founder and president of Freedom to Work, an organization that's pushing for antidiscrimination laws at the state and federal levels.