Equality drive continues: Workplace rights fight heats up

Published in Out In Maine

While much has — rightly — been made of progress toward marriage equality for LGBT Americans, another, possibly even bigger, hurdle remains: workplace equality.

In 29 states, people can still be fired simply for being gay, lesbian, bisexual, or transgender. Fortunately, Maine isn’t one of them — it’s one of the 21 states that protect LGBT individuals from workplace discrimination; a further 16 states protect LGB people, but not workers who identify as transgender, says Tico Almeida, founder and executive director of Freedom To Work, a national organization promoting employment equality.

To provide national uniformity, and include being L, G, B, or T on a long list of federally protected elements of identity that cannot be discriminated against in employment (with race, gender, ethnicity, religion, and disability, among others) comes the Employment Non-Discrimination Act, re-introduced in Congress in April. All four members of Maine’s congressional delegation are co-sponsors; Republican Susan Collins is a lead sponsor of the bill in the Senate.

Despite having 172 co-sponsors in the House and 48 in the Senate, it faces an uncertain future, though perhaps its best chance in many years.

For Maine’s delegation, it’s a pretty straightforward issue: As Independent Senator Angus King said in a statement from his office, “No one should suffer employment discrimination for any reason, including on the basis of their sexual orientation or gender identity. Simply put, it’s entirely unacceptable and shouldn’t be tolerated. When it comes to the workplace, all that should matter is a person’s skills and their ability to perform the job.”

And it’s not exactly a controversial issue outside the Capitol. In a November 2011 poll done by the Human Rights Campaign, 87 percent of Americans thought discrimination against LGBT workers was already outlawed by federal statute; 78 percent thought it was illegal in their own state, including 75 percent of people in states that actually lack anti-discrimination laws. (The survey’s margin of error is 3.46 percent.)

Further, 77 percent of Americans support protecting LGBT people from employment discrimination, including 70 percent of Republicans and 67 percent of people who identified themselves as conservative. Heck, groups usually thought to really oppose gay rights were strong backers: 69 percent of people over 65, 68 percent of people with a high school degree or less, 77 percent of observant Christians, 74 percent of born-again Christians, and 72 percent of residents of the Deep South, the poll says.

But in Congress, it’s a hot potato, 1st District Congresswoman Chellie Pingree says in an interview: “The Republican House leadership is extremely conservative. There’s just no way they would bring it up.” As a strong supporter, she’s trying to be optimistic: “I’m hoping Congress will catch up” with the wider public, she says.

With some major donors starting to withhold money from the Democratic Party because of their failure to act to protect LGBT individuals, whether through the executive order or through the killing of sponsorship for non-citizen same-sex spouses in the immigration reform package, the pressure is on President Barack Obama and the Democrats to force something to happen.

Senate action

Congressional progress has been long delayed — ENDA and other bills with similar protections have been introduced repeatedly since 1974. Supporters had hoped for a Senate committee hearing in June, but may yet get one sometime in mid-July, if Senator Tom Harkin, an Iowa Democrat who co-sponsored the bill in the Senate, keeps his promise to discuss the bill after the July 4 holiday break. (With the Supreme Court expected to rule on the Defense of Marriage Act by the end of June, the July timing also provides an opportunity to revise the ENDA bill’s language to preserve protections in response to whatever is contained in that ruling.)

Harkin’s announcement of committee hearings gives supporters heart; so does the recent announcement by Senate Majority Leader Harry Reid, a Nevada Democrat, that he has a lesbian niece, and that he does not think she should lose her job because of her sexual identity. He has floated the possbility that the bill might come up for a full Senate vote this year, perhaps in September or October.

If that happens, and if it succeeds, as Almeida expects, it will likely be due to Collins’s hard work behind the scenes, convincing her colleagues, both Democrat and Republican, to support fairness and equality in employment.

“I think Democrats have been going too slowly on ENDA,” Almeida says, adding that Collins appears to agree, because she is pushing Dems in the Senate to keep their promises of support for gay rights. And she is convincing her Republican colleagues that ENDA is a safe, bipartisan bill that deserves their support too.

Christian Berle, FTW’s new legislative director, who was born on Cliff Island and grew up in Portland and Cumberland, calls Collins’s support for gay rights “a matter of compassion and support for common human decency.” He should know: not only a former deputy director of the Log Cabin Republicans, he has known Collins for 17 years, including interning on her 1996 campaign and twice in her DC office.

Almeida projects the bill will pass out of the Harkin-led Senate Health, Education, Labor, and Pensions Committee with every Democrat in support and “one to three Republicans” in favor as well, which should set it up for a good vote in the full Senate, if Reid keeps his word. “I think we can get go 60 votes and even a little bit more,” Almeida says.

House inaction

Speaker of the House “John Boehner is a roadblock to ENDA — and many other things that would benefit the American people,” Almeida says. And John Kline, a Minnesota Republican who chairs the House Education and the Workforce Committee, is also “ultra-conservative, anti-gay,” Almeida says. “His intention is to bottle up ENDA in committee and never have it see the light of day.”

So the normal legislative process in the House may need a kick in the pants.

Happily, there is a method for doing that. It’s called a “discharge petition,” through which, with the support of at least half the House, a bill can be pulled out of committee and directly to a vote on the House floor. With more than 170 House members already signed on as co-sponsors, that leaves between 40 and 50 more members needed to support bringing it to a vote.

Almeida says the full number may not be needed; the last time this method was used successfully was with the McCain-Feingold campaign-finance reform bill, in 2002 — when the number of House members supporting the discharge petition got close to the 218 target, the House leadership reluctantly started working the bill through the committee process. Almeida projects a similar situation may happen with ENDA, so Boehner can avoid looking like he is losing control of the flow of legislation.

Pingree says such a petition would likely be more strategic and symbolic than directly effective, but she supports any effort to bring ENDA up for a vote, even in a House led by hostile opponents.

Executive action

Even before Congressional movement, there is more that can be done: President Barack Obama could issue an executive order offering similar protection to more American workers.

Employees of the federal government are already protected by ENDA-like rules, created initially by an executive order from President Bill Clinton for LGB people, and expanded by Obama to include transgender people.

The next target for an executive order is federal contractors — private companies that get government contracts and are paid in taxpayer dollars. While campaigning in 2008, Obama said he supported such a move; five years later he has yet to act on it.

It is true that most major federal contractors have protections for sexual orientation and gender identity, and that more such companies are adopting such policies all the time. But discrimination remains widespread: Williams Institute studies show that between 15 and 43 percent of GLB people have been subjected to sexual-orientation-related discrimination or harassment in the workplace, and 90 percent of transgender people report “some form of harassment or mistreatment on the job or report having taken some action such as hiding who they are to avoid it.”

It is indeed is worth celebrating the fact that at least 61 percent of federal-contractor employees “are already covered by laws or private policies protecting against sexual orientation discrimination,” and “at least 41 percent . . . are already covered . . . against gender-identity discrimination.”

But that means a stunning 11 million people — 39 percent of people working for companies that receive taxpayer dollars — are vulnerable to being fired (or passed over for promotions, or otherwise discriminated against) simply for being gay, lesbian, or bisexual — and 16.5 million — 59 percent of those workers — if they are transgender, face similar perils.

Williams Institute research says 91 percent of Americans, including 86 percent of Democrats, 70 percent of Independents, and 61 percent of Republicans support Obama issuing the executive order. With all this momentum, ENDA has its best chance in years. 

A possible pitfall

A common objection to gay-rights legislation — and an excuse for stalling, revising, or outright gutting protections — is that it somehow interferes with people’s religious freedom.

But this draft of ENDA goes so far toward protecting religious liberties that even the ACLU — which is primarily concerned about constitutional rights — says it is too broad. While the ACLU does support the overall bill, and its underlying principles, “we do have really serious concerns with the religious exemptions,” says Rachel Healy, communications and education director of the ACLU of Maine. Counterintuitively, the rules could “provide . . . cover to discriminate against LGBT employees,” by exempting a very broad range of religious-affiliated organizations from the law.

Churches and other houses of worship would be exempt, as expected (the law couldn’t tell the Catholic Church it had to hire, or could not fire, a priest who did not conform to the Pope’s rules). But so would hospitals and universities affiliated with religious groups. And they would be allowed to discriminate in employment positions that are not at all related to religious doctrine or practice — such as cleaning staff and office workers. That level of discrimination is “a sweeping exemption that is broader than anything that’s ever been okayed before,” including for exemptions about discrimination on the basis of race, gender, or disability, Healy says.