By Out & Equal staff: Pat Baillie, Director of Training and Professional Development and Teddy Basham-Witherington, Director of Institutional Partnerships
Most people are unaware that in 29 U.S. states you can be fired simply on account of being gay, lesbian or bisexual. Although some cities have LGBT protections, you would have no recourse at the state level to appeal being fired. Not only that, you can be discriminated against in those same states at all phases of the employment process, from application all the way through to termination.
If you happen to be transgender, those same 29 states, plus four more have no legislative protections in employment on the basis of gender identity. A first step has been made with the landmark Equal Employment Opportunity Commission decision in the Macy case of 2012. The EEOC extended the Federal Civil Rights Act, Title VII prohibition against sex discrimination to include discrimination against transgender employees. However, this finding does not carry the weight of law so there is still a need for explicit state inclusion that discrimination based on gender identity and gender expression is illegal. Until laws are in place, both employers and transgender employees will be in doubt as to their responsibilities and their rights.
In the U.S., most employment (unless you have a specific contract of employment) is “at-will” – meaning that both employer and employee can end the employment relationship at any time without reason or warning. This means an employer can dismiss an employee without cause. There are, however, exceptions to this general statement, such as an employee cannot be fired due to an illegal reason, if they are covered under public policy (expressed in state constitutions and statutes) or they have contracts that modify the “at-will” relationships. These exceptions vary from state to state, creating challenges for LGBT employees living in states without explicit protections.
Looking at these exemptions, the most significant and in our case, relevant, exception to the at-will rule is in the area of statutory exceptions. Federal protection examples of this would be Title VII of the Civil Rights Act of 1964 (discrimination on the basis of race, color, religion, sex or national origin), the Equal Pay Act of 1963, Age Discrimination in Employment Act of 1967, Rehabilitation Act of 1973 and Americans With Disabilities Act of 1990. There are no federal statutory protections based on sexual orientation, gender identity or gender expression included in this list. At the state level, the 21 states that offer statutory protections on the basis of sexual orientation and the 17 on the basis of gender identity create the basis to challenge “at will” firings for LGBT employees, if there is evidence that the firing occurred as a result of discrimination based on those characteristics.
So, the next time someone tells you that you can be fired for being gay, lesbian, bisexual and/or transgender because employment is at-will, they are right, but if you have the time, connections, and money to pursue a case, in some states at least, you can take the employer to court, and win. In the others? Well, sadly, without the legislative protections, there is no established basis to take an employer to court, excepting of course the EEOC Macy ruling.
An interesting twist on this discussion has been created by the fall of the Defense of Marriage Act (DOMA) and the expansion of marriage equality around the U.S. You may now live in a state where marriage equality is a reality, but work in another where you can be fired for putting your wedding photo on your desk. This absurd state of affairs is not only morally wrong, it’s also bad for business. Worrying about these factors keeps both employees and employers from being fully engaged in their business!
The solution? We need a single national standard so that every LGBT employee can feel safe at work and not face a patchwork of discrimination. It’s time to engrave the terms “sexual orientation,” “gender identity,” and “gender expression” into Title VII of the Civil Rights Act.