After DOMA: The New Battle For Gay Rights At Work
According to Gregory Nevins, a staff attorney for Lambda Legal, the LGBT legal advocacy group, "not all that much" will change when it comes to LGBT Americans in the workplace. LGBT workers still aren't covered by the federal government's anti-discrimination laws for the workplace, which are spelled out in Title VII of the the 1964 Civil Rights Act. As the law currently stands, discrimination is only banned on the basis of "race, color, religion, sex and national origin." So LGBT workers have no protection if they're bullied or passed over for a promotion. And "there was nothing in the Supreme Court rulings that will change how courts interpret Title VII," according to Nevins.
But the marriage rulings do show how the courts are motivated to make sure that LGBT Americans receive rights and protections enjoyed by heterosexual Americans. So in the wake of the announcement here's where things stand -- and what to expect.
1. You can be fired for being gay. Only 21 states have passed legislation to protect LGBT workers from discrimination. So if you live in one of the 29 other states, "an employer can actually walk up to you and say you are being fired for being gay, and there's nothing you can do about it," according to James Esseks, the director of the LGBT Project at the American Civil Liberties Union. (In 33 states, the same is true for transgender workers). In fact, Lambda Legal says that there are some 900 to 1,000 cases each year in which workers claim they've been fired because of their sexual or gender identity.
2. Activists push for anti-discrimination law. Gay rights groups say that they will now focus on the long-stalled, Employment Non-Discrimination Act. The bill has been introduced every year in Congress since 1974, with the exception of 1994, to no avail. ENDA would explicitly prohibit discrimination in hiring, firing and other employment matters on the basis of sexual orientation or gender identity for all non-religiously affiliated employers with more than 15 workers.
After the Supreme Court rulings, U.S. Senate Majority Leader Harry Reid vowed, "I will soon bring the Employment Non-Discrimination Act to the floor of the Senate for a vote." The vote is expected to take place after the July 4 recess. But many say the likelihood of passage is still slim. So far, ENDA has 53 confirmed co-sponsors in the Senate.
Activists remain hopeful that President Obama will issue an executive order outlawing the discrimination for federal workers. As recently as June 13, President Obama said during a White House reception, "we need to get that passed. I want to sign that bill." But as the gay-oriented newspaper, the Washington Blade pointed out, Obama did not actually mention ENDA by name while speaking at that event.
3. Employers aren't waiting for legal change. Many private employees are making their own rules; 88 percent of Fortune 500 companies specifically ban discrimination against gay employees, according to Quartz. This means that these firms offer the exact same benefits to straight and LGBT workers, including offering medical coverage to same-sex spouses. (The figure stands at 57 percent of companies for transgender workers, according to the Human Rights Campaign.)
4. The overturning of DOMA grants gay workers new workplace rights. Married gay workers will now be covered by the Family Medical Leave Act, and so they will be able to take off up to 12 weeks each year of unpaid leave to care for their spouse, just like straight workers. Married gay workers will also be able to share health coverage with a spouse and file joint tax returns, as NBC News reports. The catch with all these new rights, however, is that they will only apply in states where gay marriage has been made legal.
5. Federal workers who are gay now have full legal protections when it comes to benefits. The repeal of DOMA promises to have the biggest impact on federal workers. As a result of the ruling, all LGBT employees for the federal government and their spouses will be able to take advantage of all the benefits and anti-discrimination policies that straight workers enjoy. This is true even if they live in states that have not made gay marriage legal.
6. More change is coming. LGBT advocates are confident that the Supreme Court rulings will help their campaigns gain steam. "The ruling won't fundamentally change workplace equality and discrimination laws," said Esseks, of the ACLU. "But we know greater equality begets greater equality. And the big picture is clear -- there's a reevaluation of what Americans think of gay people. And they are increasingly seeing them as people."
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Dan Fastenberg was most recently a reporter with TIME Magazine. Previously, he was a writer for the Thomson Reuters news service's Latin America desk. He was also a reporter and associate editor for the Buenos Aires Herald while living in South America.
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