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Workplace Discrimination

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In most states, a homophobic employer can still legally fire an employee on the basis of sexual orientation.
Homophobia Hurts
Photo: © 2006 Carolyn Saffanna. Licensed under Creative Commons.

The Big Question

Should civil rights laws protecting employees from discrimination also outlaw discrimination on the basis of sexual orientation?

The Price of Coming Out

In 34 states, it is still perfectly legal for lesbian and gay employees to be fired simply because their employers discover, and disapprove of, their sexual orientation.

States That Have Passed Anti-Discrimination Laws

California, Connecticut, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, Washington, and Wisconsin all have laws on the books prohibiting job discrimination on the basis of sexual orientation.

Federal Intervention

85 percent of Americans oppose job discrimination on the basis of sexual orientation, and 61 percent would like to see such job discrimination prohibited at a federal level. The Employment Non-Discrimination Act (ENDA) has been proposed several times since 1996, failing each time under the Republican-controlled Congress despite broad bipartisan support. Its chances in the new Democratic Congress are perhaps better than they have ever been in the past.

Two Approaches to Workplace Discrimination

An increasing number of corporations already have policies prohibiting discrimination on the basis of sexual orientation. Some fiscal libertarians who support lesbian and gay rights, such as former New Republic editor Andrew Sullivan, actually oppose ENDA in part because they believe that changes in corporate policy would represent a more democratic, and therefore more culture-changing, approach to the problem of workplace discrimination--while ENDA would abruptly introduce a new rule that, if unnecessary, could actually put an end to a very productive national movement to make corporate policies more inclusive.

This argument is similar to Justice Ruth Bader Ginsburg's argument that Roe v. Wade (1973) may have done damage to the pro-choice cause, in the long run, by stunting a more gradual but highly successful national abortion legalization movement. "Doctrinal limbs too swiftly shaped," she once argued (in reference to Roe), "may prove unstable." Still, changes in national corporate policy may do little good for lesbian and gay employees who work for local or regional corporations in socially conservative states, and there is no indication that public opinion vis-a-vis workplace discrimination is likely to backlash against the ENDA.
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