Discrimination against LGBT workers

Decades worth of national and local surveys have found that gay and lesbian workers report widespread job bias. In a 2013 Pew Research Center survey of more than 1,000 LGBT adults, 21 percent believed they’d been treated unfairly by an employer because of their identity, and 23 percent said they’d received poor service at a restaurant, hotel, or place of business. Transgender people seem to have it the worst: In a landmark 2011 nationwide survey of 6,450 transgender and gender-nonconforming folks, 90 percent said they had been mistreated at work; 47 percent said they’d been fired, not hired or not promoted; and 19 percent said they’d been denied housing. All of this has a real economic impact: Several studies over the years have found that anywhere from 22 to 64 percent of transgender workers earned less than $25,000 a year, or less than half the national median income.

“They often end up taking discrimination on the chin, because it’s very difficult to get legal recourse,” says Ineke Mushovic, executive director of Movement Advancement Project, an LGBT think tank with a focus on legal rights. “A year and a half ago, we talked to LGBT people in rural areas in states that are politically hostile to them, and they said they went to great lengths not to be out at work. They’d live in towns an hour away so coworkers would not see them at the grocery store with their partner, or they’d take lunch breaks alone.” They chose discretion, because they were likely powerless in the face of bigotry.

* * *

Indiana is one of 29 states in which private-sector antidiscrimination laws exclude sexual orientation and gender identity as protected classes alongside race, color, religion, sex or national origin. (Another three states—Wisconsin, New York, and New Hampshire—have laws that include sexual orientation but not gender identity.) That means that discriminating against most LGBT people in those states is legal.

A patchwork of cities and counties across the country—at least 14 in Indiana—have ordinances that offer local-level protection for LGBT people against bias in the workplace, housing, or public accommodations. Similarly, some public employees are protected by executive orders. In Indiana, two gubernatorial orders—signed by Governor Joe Kernan, a Democrat, in 2004 and Mitch Daniels, a Republican, in 2005—protect LGBT state employees. President Obama signed an order last year that protects federal workers. “But if something occurs in the private sector, LGBT people currently have no protection,” says Karen Celestino-Horseman, one of several civil-rights lawyers I consulted in Indiana. The lawyers told me they get calls frequently from gay and trans folks who think they’ve been discriminated against—and usually, they have to turn people away. “There’s just no state law in Indiana” with which to press charges, says Kim Jeselskis. Get a FREE PDF copy of our 150th anniversary issue. Sign Up

The Equal Employment Opportunity Commission has tried to fill the legal gap. On July 16, the EEOC concluded in a 3-2 vote that discrimination based on sexual orientation is a form of sex discrimination and hence violates Title VII of the 1964 Civil Rights Act. (Several circuit courts have ruled otherwise, meaning this may be a legal question the Supreme Court will have to settle someday.) The vote follows by three years a similar EEOC vote in favor of classifying discrimination based on gender identity as a form of sex discrimination—a logic it applied to the case of Mia Macy, who was denied a federal job after she explained that she was planning to transition to living as a woman. EEOC’s defense led to a 2013 Department of Justice ruling in Macy’s favor, requiring that she be offered the job with back-pay and legal costs, and that the workplace implement anti-discrimination policies.

I was struck by how normal of an occurrence discrimination seemed to be in the lives of gay and trans Hoosiers.

Nonetheless, LGBT people are not an explicitly protected class under federal law—as are, say, people with disabilities under the Americans With Disabilities Act—and civil-rights advocates say this reality will leave LGBT workers increasingly vulnerable if the Supreme Court’s marriage-equality ruling spurs a backlash in conservative states. In the past year alone, as marriage equality nationwide seemed increasingly inevitable, state legislatures considered dozens of new anti-LGBT bills.