In a 2016 Gallup poll, more than 10 million Americans identified as lesbian, gay, bisexual, transgender or queer (LGBTQ). To put that number in perspective, that’s more than 4 percent of the population. The same Gallup poll reported a 0.6 percent increase in Americans who identify as LGBTQ, and a 1.5 percent increase for millennials.
A major contributor to these increases is the comfort level LGBTQ people feel about coming out. The progressive movement has made tremendous strides in the last five years, with 2015’s Supreme Court recognition of gay marriage a shining example of how far we’ve come, but there are still places where sexual preference is not protected. One of them is in the office.
Acceptance in the Workplace
Perhaps you work at a company with a policy of acceptance. Many companies have taken a proactive approach to the progressive movement, installing gender-neutral restrooms and updating handbooks to promote fair treatment of LGBTQ co-workers.
Taking steps to ensure that your LGBTQ colleagues are comfortable in the workplace is important, but unlike issues of age, religion or ethnicity, sexual preference is not protected by law. That means that if you’re a hiring manager, there’s nothing to stop you from declining a qualified candidate, or even firing someone based on sexual preference, in nearly half of all U.S. states.
If you’re surprised to hear such a thing can still take place, it’s probably because discrimination in the workplace has been a hot topic lately. Sexism, ageism and religious discrimination are all indictable under federal law. Any employee who feels discriminated against for these reasons can file a claim in a matter of minutes. However, sexual orientation does not always see the same legal support.
Many states do have laws that protect LGBTQ workers. Depending on the state you work in, there may be one to four legal statutes that protect you from discrimination for sexual orientation. In some states, the laws apply only to state employees and do not extend to the private sector.
Many more conservative states have chosen not to implement these types of laws. They cite reasons such as violation of religious freedoms for neglecting to protect persons of different sexual orientations. But does the Constitution protect one set of freedoms when it impinges upon another? History tells us it does not.
Challenging the Status Quo
Recently, the case of Kimberly Hively, an instructor at Ivy Tech Community College in Indiana, was overturned by the Seventh Circuit Court of Appeals. The court ruled that Hively, who was asked to leave her position after she was seen kissing her then-girlfriend in the school parking lot, was fired in violation of federal civil rights law.
It’s a promising victory for the LGBTQ community. However, a court of appeals cannot make law. Only the Supreme Court can do that. Currently, no case of this nature has made its way to the highest court in the land, which means federal law still takes no position on employer discrimination against sexual preference. But there may be a case that can change that.
The Case of Jameka Evans
In April 2015, Jameka Evans filed a lawsuit against her employer, Georgia Regional Hospital, after she was fired for not conforming to gender norms. Lambda Legal, an organization that champions the legal rights of the LGBTQ community, came to Evans’ aid.
The case was dismissed by the U.S. District Court for the Southern District of Georgia and appealed to the 11 Circuit Court of Appeals in Atlanta, where it was rejected again. Greg Nevins, director of Lambda Legal’s Employment Fairness Project, has expressed surprise at the appellate court’s decision to dismiss the case, particularly in light of the recent Hively case.
Lambda Legal now plans to appeal the case all the way to the Supreme Court, where it could prove groundbreaking for LGBTQ workers.
Change We Need
In an era when 90 percent of America believes it is unfair to discriminate against someone due to their sexual orientation, it’s remarkable we haven’t made this law.
Those who seek to oppress the LGBTQ community are dedicated, but what repercussions can they point to in the wake of the national legalization of same-sex marriage? What repercussions are there for the 22 states with laws that protect these people from being unfairly stripped of their livelihood?
This is not a matter of if, but when, and with the Evans case headed to the Supreme Court, it appears it may be sooner than later.