Employment discrimination: The next frontier for LGBT community

Jennifer Calfas | USA TODAY

Hundreds of advocates for lesbian, gay, bisexual and transgender rights gathered on the steps of the Supreme Court on June 26 to celebrate a historic decision to legalize same-sex marriage. After years of legal battles, the higher court put the issue to rest.

But LGBT leaders say that's not all that needs to be done to achieve equality.

In 28 states, it is legal to fire someone based on his or her sexual orientation or gender identity. While there is some federal recourse through civil rights and equal employment claims, there's no national anti-discrimination law to protect LGBT workers from state whims. Title VII of the Civil Rights Act of 1964 prohibits job discrimination based on race, color, sex, religion and nation of origin, but does not extend those protections to LGBT people.

Rep. David Cicilline, a Rhode Island democrat, and Sen. Jeff Merkley, an Oregon democrat, introduced comprehensive legislation on July 23 to address the issue. The bill, called the Equality Act, has 168 co-sponsors in the House, including House Minority Leader Nancy Pelosi, 39 co-sponsors in the Senate and encompasses issues of discrimination in employment, housing, public accommodations, education and jury service.

"Although you can be married Saturday, post your pictures on Facebook on Sunday, you could then be fired Monday," Cicilline told USA TODAY.

Workplace gay rights are likely to take more of the national spotlight in the wake of the Supreme Court's 5-4 decision on June 26 to legalize same-sex marriage. For many people, the Supreme Court decision was just the beginning. Advocates for the lesbian, gay, bisexual and transgender community now seek to conquer another frontier: ending workplace discrimination.

Twenty-two states and the District of Columbia have laws prohibiting employers from firing employees due to just their sexual orientation or gender identity. In 2014, President Obama signed an executive order to protect LGBT federal employees.

The Rhode Island representative, who also sits on the congressional LGBT equality caucus, said he hopes the bill to find support in both the House and the Senate and among Democrats and Republicans, as it addresses what he says are basic human rights.

"This is an issue about a core American value: the idea of treatment and fairness under the law," Cicilline said.

The Equal Employment Opportunity Commission (EEOC), an agency that enforces federal laws for employees, has interpreted Title VII of the Civil Rights Act of 1964 to include LGBT individuals under its protections.

In 2012, the EEOC found discrimination against an employee due to his or her gender identity falls under Title VII of the Civil Rights Act in a case revolving around a transgender woman who said she was fired from a new job because she was undergoing her transition at the time.

More recently, the EEOC ruled on July 17 that Title VII policies include protections for gay, lesbian and bisexual employees as well. The decision came from a case involving an air traffic control specialist from the Federal Aviation Administration in Miami who said he was not promoted due to his sexual orientation as a gay man.

On the same day the EEOC released the decision, Former Florida Gov. Jeb Bush, a Republican presidential candidate, said he believes LGBT anti-discrimination laws should be left up to the states to decide.

And some states are torn on the issue. In Feb. 2015, Kansas Gov. Sam Brownback issued an executive order to remove an existing law that barred workplace discrimination for LGBT individuals in the state. The decision rescinded a 2007 executive order from former Kansas Gov. Kathleen Sebelius that established an anti-discrimination law.

In a statement in February, Brownback said his new executive order ensures Kansas employees to enjoy civil rights "without creating additional 'protected classes' as the previous order did."

And other states grapple with the issue as well. An state LGBT anti-discrimination law is pending in South Carolina. Advocates of the bill include Crystal Moore, the town's police chief, who says she was fired due to her sexual orientation and later returned to her post after the community rallied behind her.

Moore used her experience to testify in May 2015 before the South Carolina House Judicial Constitutional Laws Subcommittee about legislation that would ban discrimination based on gender identity and sexual orientation in the state. The legislation is still pending.

Leaders in the gay rights movement support a national LGBT anti-discrimination law. The Human Rights Campaign, a national organization that advocates for LGBT rights that fought on the front lines for same-sex marriage, supports the newly introduced Equal Act and have worked with businesses around the country to implement anti-discrimination policies.

According to an HRC report, the majority of Fortune 500 companies have already established workplace protections based on sexual orientation and gender identity. The percentage of these companies with protection policies for sexual identity jumped from 61% in 2002 to 91% in 2014.

"Just because the law doesn’t mandate it, it doesn't mean as a business you can't go ahead and implement these protections," said Deena Fidas, director of the workplace equality program at HRC.

The National LGBTQ Task Force, an organization which promotes civil rights for this community, supports the newly proposed bill as well. But, overall, the goal extends beyond legislation as the fight for rights will always be socially contentious.

"The vision for society, in addition to legal equality, is lived freedom," said Rea Carey, the executive director of the organization. "You should not be fired from your job just because of who you are or who you love, but you should also be able to feel safe in any community that you live in."

Both Fidas and Carey noted the complexity of the issue for LGBT individuals who work at religious institutions. : LGBT workplace discrimination is more nuanced when it comes to religious freedom, exhibited in the case of Kristen Ostendorf. The former English and religion teacher was fired from her job at Totino-Grace High School, a Catholic school in Fridley, Minnesota, in 2013.

In front of fellow faculty members, Ostendorf announced her identity as a lesbian, which resulted in her termination.

But she knew she would be fired. Ostendorf's contract included a signed copy of the Justice in Employment policy, which stipulates that employees at Archdiocesan institutions may be dismissed from their roles if they openly defy the teachings of the Catholic Church.

If a federal law were enacted to protect LGBT individuals, this would not extend to religious organizations or religiously affiliated schools.

"Freedom of religion is protected by the Constitution," said Catherine Conway, a partner who specializes in employment law at Gibson, Dunn & Crutcher LLP. "Therefore there is a necessary caveat. You can't tell a religious group – even if you disagree with it – to change its beliefs."

Ostendorf said she can't imagine living in a society where the same exemption would be true for individuals with other minority statuses.

"We're not OK with that, but when we discuss sexuality, sexual identity or sexual orientation, it's suddenly OK to discriminate against that," Ostendorf said. "That makes me nervous for society."

For LGBT civil rights leaders, legislation and Supreme Court rulings are baby steps for the community at large. Though some lawmakers may be on their side legally, public attitude may be more difficult to improve.

"Policies and laws are necessary for LGBT equality, but they're not sufficient," said Fidas, director of the workplace equality program at HRC. "That doesn't necessarily mean the water cooler conversation is inclusive."