A Broken Bargain for LGBT Workers

Published: June 4, 2013

Ask 10 Americans whether it’s legal under federal law to fire an employee just because that employee is gay or lesbian, and only one of them will provide the correct answer: Yes, it’s legal.

This fact is so hard for most Americans to believe that it bears repeating. It is legal under federal law to fire an employee just because that employee is gay or lesbian. Surprised? Consider these three alarming facts.

First, federal laws that prohibit employment discrimination based on race, ethnicity, sex and religion still don’t explicitly protect gay, lesbian, bisexual and transgender workers (LGBT). Even with a recent landmark decision by the Equal Employment Opportunity Commission, Macy v. Holder, providing some protections for transgender workers, protections for the LGBT workforce remain piecemeal and less than clear. The problem extends to state laws as well. In 29 states, state law allows private employers to fire someone based on their sexual orientation — and based on their gender identity in 34 states.

Second, most policy makers are still voting to make sure it stays this way. Anti-gay voices in Congress have continued to block measures — such as the federal Employment Non-Discrimination Act, which was first introduced 19 years ago — that would include LGBT workers within federal employment nondiscrimination law. Similarly, even states like New York continue to lack explicit nondiscrimination protections for transgender workers. This in a state that passed marriage equality just two years ago.

Third, this obstructionism continues despite the fact that it is entirely out of step with American values. A 2011 poll by the Center for American Progress showed that 73 percent of the American public supports nondiscrimination protections for LGBT employees. A 2013 Small Business Majority poll shows that 67 percent of small businesses also support such protections. And 96 percent of Fortune 500 companies include "sexual orientation" in their corporate nondiscrimination policies.

But that’s not all. Beyond discrimination in hiring and firing, LGBT workers often receive fewer workplace benefits and pay more in taxes than their co-workers. Why? Because in order to qualify for many family benefits — ranging from family health insurance coverage to earned Social Security spousal benefits — a worker must be married and must be a legal parent of his or her children. The same is usually true if a worker wants to qualify for family tax credits and deductions. But state and federal law often make it impossible for LGBT workers with families to meet these criteria.

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