Relief on the horizon for LGBT employees

On Friday, November 7th, the U.S. Senate voted to pass the Employment Non-Discrimination Act (ENDA) (S.815), a bill that would provide long overdue workplace protections for lesbian, gay, bisexual, and transgender (LGBT) employees. The bill has been referred to the House of Representatives, although it remains uncertain whether House leadership will bring it to the floor for a vote.

ENDA is modeled on existing federal employment legislation and, if passed, would prohibit discrimination on the basis of actual or perceived sexual orientation or gender identity. The law would apply to both public employers and private non-religious employers with at least 15 employees.

As a November 2013 report from UCLA’s Williams Institute highlights, there is ample need for federal legislation in this area:

  • 4% of the U.S. workforce identifies as LGBT.
  • 21% of LGBT employees report suffering workplace discrimination.
  • 47% of transgender employees report similar workplace discrimination.
  • $0.68-$0.90 is how much gay and bisexual men make for every dollar earned by similarly-qualified heterosexual men.
  • One out of every 25 complaints about discrimination comes from LGBT employees.
  • 96% of Fortune 500 companies that have implemented LGBT workplace protections say their business has gotten a boost as a result (in the form of increased productivity, higher retention rates, and quality of talent attracted).

Some public LGBT employees are already protected. Federal employees have the benefit of federal civil service laws, which have been interpreted to prohibit discrimination based upon sexual orientation and gender identity, as well as by Executive Order 13087. Similarly, Pennsylvania state employees are protected from such discrimination by PA Executive Order 2003-10.

However, as recently reported by the Government Accounting Office, only twenty-one states prohibit discrimination by private employers based upon sexual orientation, and only seventeen prohibit such discrimination based upon gender identity.

Pennsylvania (along with neighbors Ohio and West Virginia) is among the majority of states that do not offer such protections. Despite this, LGBT employees may still have options if they face discrimination, even if ENDA is not passed.

Some local jurisdictions in Pennsylvania, including the City of Pittsburgh, Allegheny County, Erie County, and Philadelphia, have enacted ordinances prohibiting employment discrimination based upon sexual orientation and/or gender identity, although the procedures, deadlines, and remedies available vary. For a detailed discussion of employment discrimination based on sexual orientation and gender identity in Pennsylvania, see this report by the Williams Institute.

In addition, LGBT employees may still bring claims for unlawful sex discrimination and sex-stereotyping, in violation of existing federal or state laws.

As with other status-based discrimination, no one deserves to be treated differently because of who they are. Even if ENDA does not pass, an employee facing this kind of discrimination should not sit by and allow it to happen. If you have questions or believe your rights have been violated, contact an employment attorney.