The St. Louis Rams drafting the first openly gay football player highlights the disconnect between how the public treats the LGBT community and the nonexistent employment protections.
After Michael Sam was drafted, Missouri’s Democratic Senator Claire McCaskill raised the point on Twitter that Sam and other Missouri employees can be fired for being gay.
“It’s hard explaining to a client that their [sexual] orientation is less deserving than somebody who is discriminated against because of their weight,” said employment lawyer Jason Shinn, who also writes for the Michigan Employment Law Advisor.
While Shinn does not practice in Missouri, both Michigan and Missouri are cut out of the patchwork of state policies that protect LGBT employees from harassment and being fired because of their sexuality. Only 21 states and Washington DC prohibit sexual orientation discrimination in the workplace by all employers, while 10 other states extend the protection to only state employees. This is in contrast to America’s general growing acceptance of LGBT adults.
“I think that there’s a disconnect between the laws on the books and the protections – or lack of protections – that are provided to members of the LGBT community,” said Shinn. “I think a lot of employers, however, recognize that talented and qualified employees are just that and offer protections within the company concerning sexual orientation. I think the law needs to catch up to where a lot of businesses and society already is.”
Congress has shot down the Employment Non-Discrimination Act, which would include sexual orientation, in nearly every legislative session since 1994. Without the federal protection, states have been been taking it upon themselves as well as municipalities to establish their own anti-discrimination policies.
According to New York employment lawyer Richard Cohen, municipalities passed their own protections because it made sense from a business perspective:
“Business groups were fighting for these laws to be passed because they were saying that if we don’t do this, people are not going to want to move here, there’ll be boycotts, we’ll miss out on people with great skills and talents, and the economy is going to pass us by. Strictly as an economic measure, people were lobbying to pass these laws aside from civil rights groups and others. The corporate world seems to have taken up – or been in the advanced guard ahead of municipalities.”
Legal Technicalities and Protections
Due gridlock in Washington and the ideologically-polarized Congress, Cohen explained that federal conditions for an antidiscrimination bill are not favorable. In the 29 states that don’t extend protections to all employees, people can technically fired for being gay, but the key word is technically.
“While the statement is technically true, there are more complex labor issues that play into this, and you’re never going to see a case where someone really was fired because of this reason,” said labor and employment lawyer Sara Jodka, who also authors the Employer Law Report.
While there is nothing stopping employers from directly asking someone about their sexuality, Jodka added that it’s unlikely that employees are fired for their sexuality alone and orientation harassment can cross into other protected classes at the state and federal levels.
“Sexual orientation straddles that line because it can quickly become gender stereotyping and protected gender discrimination depending on the facts of the case,” she said. “A lot of things go along with sexual orientation; the way you choose to represent your gender and how you choose to engage as the member of a certain gender can lead to stereotyping.”
Under Title VII of the Civil Rights Act, gender is a protected class and that stereotyping is considered sex discrimination. In order to sue an employer for harassment or unfair termination, a LGBT employee would have to find a workaround the lack of state protection.
“Courts generally take the position that sexual orientation under workplace anti-harassment statutes are not protected, but there’s a framework that may apply whether the harassment or the misconduct is sort of shoehorned into these statutes,” said Shinn.
According to Jodka, the courts are not keen to step over legislators to amend employment laws, but more companies are creating internal antidiscrimination policies.
“I’ve seen an significant increase,” said Jodka about corporate clients amending their handbooks. “This is especially true for clients with nationwide or multiple [state] operations … We’ve also seen employers that are isolated to a state that doesn’t have these laws because these issues are garnering so much attention and there is becoming a new acceptance of the LGBT community.”
She does point out that while this is becoming increasingly common, companies are not publicizing their internal protections in order to protect their bottom line.
“When you come out and say that, you are taking a certain platform. You are taking a stand whether you want to or not,” said Jodka. “You may be doing it because you believe in equality and not because you want to take a stand necessarily for the LGBT community or to say that you’re pro this or pro that. Taking a stance either way, you’re going to isolate people, and when you are a company, your business is built on providing services or products to the masses.”
Good policy or not, corporations are just a small part in a larger narrative of workplace equality and the growing social acceptance of the LGBT community. While politicians are not as quick to update laws, Shinn said that businesses don’t want to limit successful employees because of one factor – protected or not.
“I have seen more companies, usually they are larger companies, that have come to the realization that to be successful you have to have the best talent, and talent comes in all different kinds of shapes, sizes colors and orientations. At the end of the day it really doesn’t matter if that person is the best employee for that job.”