The Rights of Gay Employees

The following has been clipped from the Saturday 12 September 2009 issue.
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It is remarkable how little progress gay people have made in securing the basic protection against discrimination on the job. In 29 states, it is still legal to fire workers for being gay. But momentum is building in Congress for the first federal law banning such discrimination against gay, lesbian, bisexual and transgender people.

Federal law has lagged behind the reality of American life. There are now openly gay members of Congress from between-the-coasts states like Colorado and Wisconsin. And according to the Human Rights Campaign, a gay-rights advocacy group, 85 percent of Fortune 500 companies have policies protecting gay employees from discrimination.

But gay rights advocates have for years faced opposition to a federal civil rights law from the religious right, and from parts of the business community, who  argue  that  it  would lead to a flood of litigation.

Bipartisan bills have been introduced in both the House of Representatives and the Senate, modeled on existing civil rights laws that cover race, religion and sex. Unlike some past bills, these include gender identity, protecting transgender people from discrimination.

The bills were written to meet some of the concerns of opponents. The law would not apply to religious organizations, or to businesses with fewer than 15 employees. It would not allow for quotas or “disparate impact” lawsuits, which generally use statistical disparities to prove discrimination.

There is reason for cautious optimism. In 2007, the House passed a nondiscrimination law that did not cover transgender people. The current Congress is more Democratic, and even in the past two years, gay rights have made significant strides. As states and localities have passed antidiscrimination laws, it has been clear that they do not disrupt the workplace, and they have not resulted in an enormous number of lawsuits.

Supporters in the House think they have the votes. The biggest hurdle is likely to be winning the support of 60 senators, the de facto number now required for most legislation because of filibuster rules.

People who believe in workplace fairness should lobby senators to get on board. It is unacceptable that in a nation committed to equality people can still be fired in more than half the states for being gay. Congressional leaders should make passing the Employment Non-Discrimination Act a top priority.

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