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Ethics of LGBT Discrimination in the Workplace

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Introduction

Lesbian, gay, bisexual and transgender (LGBT) people face widespread discrimination and sexual harassment in the workplace because of their sexual orientation and gender identity. This has subjected them to numerous problems that have manifested negative impacts on their wages as well as on their physical and mental health. To compound the problem, the existing federal, state and local legislations have failed to give comprehensive protection to LGBT employees. Although there are various legislations tending to the problem, they are at best inadequate or their enforcement mechanisms are very weak. In light of such deficiencies, there is need to empower some federal legislations such as the Employment Non-Discrimination Act (ENDA) to ensure that LGBT individuals find legal protection in their areas of employment. Employers should also design LGBT-friendly programs and enforce local contractor ordinances in order to address the problem. Examining the magnitude of LGBT discrimination, highlighting attempts to tackle the problem and giving some probable solutions will aid to create a better understanding of the problem and potentially offer the best courses of action to deal with the issue of LGBT discrimination in the workplace.

Magnitude of the Problem

The discrimination against LGBT individuals in the workplace has been very pervasive and prevalent over the years. According to Pizer, Sears, Mallory, & Hunter (2012), approximately 4% or 8 million americans currently in the workforce identify themselves as LGBT. Legal scholars, historians and the courts have acknowledged that LGBT employees have have to endure a long history of discrimination and sexual harrassment in the workplace, malpractices that have interfered heavily with their productivity while manifestig devastating health and employment consequences (Burns & Krehely, 2011).

The Congress introduced the first federal bill to prohibit workplace discrimination based on sexual orientation and gender identity in 1973, and since then there have been numerous attempts to offer protection for the LGBT employees in their areas of work (Pizer, Sears, Mallory, & Hunter, 2012). Research conducted over the last several decades since the introduction in 1973 of the federal legislation points that although the legal mechanisms to protect LGBT have been bolstered significantly, there is still widespread and pervassive discrimination of LGBT in the workplace (Day & Schoenrade, 2000).

The General Social Survey (GSS) carried out by University of Chicago’s National Opinion Research Center in 2008 found out that 12% of lesbian and gay individuals had lost their employment due to discrimination based on their sexual orientation while a further 37% experienced harrassment in their places of work from 2003 to 2008 principally because of their sexual orientation (Pizer et al., 2012). In addition, according to Cavico, Muffler, & Mujtaba (2012), approximately 47% of LGBT in 2011 faced discrimination in hiring, job retention and promotion mainly due to their gender identity.

The GSS survey also pointed out a disturbing trend where LGBT employees were not willing to disclose their status for the fear of retaliation that would subject them to further discrimination (Cavico, Muffler, & Mujtaba, 2012). This is also consistent with a 2009 Transgender Law Center report that found out only 15% of LGBT employees who faced workplace discrimination or harrassment reported the matter for further investigation (Pizer et al., 2012). The failure to file complaints is an issue that has continued to subject the LGBT to more discrimination and hindered the prospects for finding a lasting and workable solution to LGBT discrimination in the workplace.

Further statistics for increased discrimination and harrassment of the LGBT individuals comes from the US Government Accountability Office, which compilled 4788 state administrative complaints on employment discrimination of LGBT between 1993 and 2001 (Pizer et al., 2012). The findings from the compilation revealed a disturbing trend of LGBT discrimination in employment mainly stemming from the belief that even though there were stringent legislations guarding against the discrimination of LGBT, there existed little efforts to adress the issue of discrimination that has continued to sink the LGBT employees (Pizer et al., 2012).

The report found out that local and state administrative agencies often lacked willingness, knowledge or resources to consider complaints pertaining to gender identity or sexual orientation discrimination (Mawdsley, 2011). In addition, the report noted that judges and courts are often unreceptive when dealing with LGBT plaintiffs and this has resulted to their continued marginalization and discrimination in the workplace (Pizer et al., 2012).

More disturbingly, the LGBT individuals in the workplace also have higher chances of being uninsured. The National Survey of Family Growth in 2002 found out that 15.2% of lesbians and 27.2% of gay men did not have insurance, compared to 12.8% of heterosexual women and 18.9% of heterosexual men (Yecies, 2011). Such discriminatory practices present numerous challenges and predicaments for the employees especially with regard to their wages as well as their physical and mental health.

The issue of discrimination in the workplace is not only a worrying problem in the United States but is also widespread in other developed and developing countries. According to a report by the United Kingdom based Equalities Review, discrimination of transgendered employees is also widespread in the United Kingdom (Whittle, Turner, & Al-Alami, 2007). The report found that notwithstanding the overrepresentation of transgender and other LGBT employees in senior occupational classes as compared to the national average, the experiences faced by these employees and afforded by the workplace left much to be desired.

The report found out that 42% of transgendered employees did not live permanently in their preferred gender role mainly because they feared that exposing the gender identity or sexual orientation would jeopardize their employment status (Whittle, Turner, & Al-Alami, 2007). Indeed, the report found a shocking statistic where one in every four-transgendered employees during the transition period had to use inappropriate toilet or none at all in the workplace because of pervasive discrimination.

In addition, the report found that 6% of LGBT faced physical assault while 10% experienced verbal abuse (Whittle, Turner, & Al-Alami, 2007). These types of bullying and harassment, coupled with minimal or no protection from the employers made at least 25% of the LGBT feel compelled to change their jobs (Whittle, Turner, & Al-Alami, 2007). Therefore, there is an urgent need for employers to take urgent measures to protect the LGBT employees from discrimination in the workplace.

Attempts to Tackle the Problem

The inadequacies in federal legislation have complicated the issue of LGBT workplace discrimination. As envisaged by Cavico, Muffler, & Mujtaba (2012), “presently, federal civil rights law generally does not prohibit discrimination on the workplace based on sexual orientation, sexual preference or gender identity”(3).

The 1964 Civil Rights Act Title VII is one legislation that seeks to protect individuals against discrimination in the workplace. It prohibits workplace discrimination on the basis of religion, national origin, sex, color and race (Burns & Krehely, 2011). However, its prohibition against harrassment or discrimination based on sex fails to cover discrimination resulting from sexual preference or sexual orientation of the employees (Pizer, Sears, Mallory, & Hunter, 2012).

Furthermore, vague or dismal interpretation of “sex” by courts basing strictly on its biological definition has rendered Title VII very ineffective in combating the issue of sexual discrimination in the workplace (Cavico, Muffler, & Mujtaba, 2012). Even worse is the reality that while Title VII prohibits discrimination and harrassment in the workplace, only Washington D.C. and sixteen other states include both gender identity and sexual orientation in their non-discriminatory laws.

Creed v. Family Express Corp. and Etsitty v. Utah Transit Authority are two cases that can illuminate on the vagueness of Title VII to the disadvantage of LGBT employees (Pizer, Sears, Mallory, & Hunter, 2012). In Creed v. Family Express Corp, 2007 WL 2265630, the plaintiff, Ms. Creed, lost her employment because she disclosed that she was transgender. She filed with the federal district court in Indiana. In its ruling, the court pointed out that Title VII did not cover some specific allegations of discrimination or harassment based on transgender status, but confusingly affirmed that the provisions of Title VII cover allegations of gender expression discrimination (Pizer, Sears, Mallory, & Hunter, 2012). In Etsitty v. Utah Transit Authority, the district court in Utah issued a similar verdict citing that Title VII does not offer protection to transgender employees.

The Seventh Circuit has also pointed out that “the prohibition against discrimination based on an individual’s sex is not synonymous with a prohibition against discrimination based on an individual’s sexual identity disorder or discontent with the sex into which they were born” (Pizer, Sears, Mallory, & Hunter, 2012, p. 729). Such misintepretations from the judicial authorities have rendered attempts to address the issue of workplace discrimination facing LGBT employees and hence there is a need for concerned stakeholders to take timely and decisive actions to mitigate the problem of LGBT discrimination in the workplace (Cavico, Muffler, & Mujtaba, 2012).

The repeal of the Don’t Ask Don’t Tell (DADT) provisions that enabled lesbian and gay individuals to serve openly in the military is yet another powerful indication of the efforts pursued by the US government in efforts to stop discrimination and marginalization of the LGBT individuals in the workplace (Burns & Rothman, The Repeal of Don’t Ask, Don’t Tell—1 Year Later, 2012). Ending the policy marked a significant step in the fight against discrimination in the workplace, and was able to improve the military’s capability in addition to reflecting the nation’s commitment to equal opportunity.

Since the the enactment of DADT policy in 1993, gay men and women could not openly serve in the military, a situation that amounted to increased discrimination and subjected the LGBT personnel to immense suffering. According to Burns & Rothman (2012), in the one year after the repeal of DADT provisions, studies show that the accomodation of LGBT individuals to serve openly in the military “has had no negative effect on any component of military readiness, including cohesion, recruitment, retention, assaults, harrassment or morale”. Indeed, the authors argue that the repeal of the discriminatory law has enhanced the abiliy of the military to pursue its mission, thereby enhancing the national security (Burns & Rothman, The Repeal of Don’t Ask, Don’t Tell—1 Year Later, 2012).

However, despite the relative success of the initiative centered at repealing the DADT provisions, the openly gay and lesbian military personnel still suffer from various problems most notably the lack of equal treatment like other heterosexual service members. As envisaged by Burns & Rothman (The Repeal of Don’t Ask, Don’t Tell—1 Year Later, 2012), the openly gay or lesbian military personnel to not have access to equal benefits like that afforded to other members of the forces even after the repeal of DADT. They lack access to vital benefits that guarantee financial support and employment security such as military health insurance, housing allowance and travel and relocation assistance (Cavico, Muffler, & Mujtaba, 2012).

Previously, the main reason that the gay and lesbian service members do not receive these equal benefits is primarily because of the Defense of Marriage Act (DOMA), a federal legislation that had defined marriage as a union between one woman and one man (Pizer, Sears, Mallory, & Hunter, 2012). However on 06/28/2013 the Supreme Court overturned part of the 1996 Defense of Marriage Act with a 5-4 majority. The decision was a major breakthrough for the LGBT community as the decision now allows couples in a legal same-sex marriage to receive the same federal benefits as heterosexual couples.

Solution and Way Forward

An important ways to address the issue is empowering current legislations that seek to bring an end to discrimination faced by LGBT in the workplace. One such legislation is Employment Non-Discrimination Act (ENDA), first introduced by Massachussets Representative Barney Frank in 2009 (Pizer, Sears, Mallory, & Hunter, 2012). ENDA seeks to prohibit discrimination in employment based on perceived or actual gender identity, sexual preference or sexual orientation (Cavico, Muffler, & Mujtaba, 2012). It would apply to both the publc sector and private sector employers that have 15 or more employees, and would provide equitable relief to both the private and public sector employees regardless of their sexual orientations (Pizer, Sears, Mallory, & Hunter, 2012).

The provisions of ENDA make it illegal for employers to refuse or fail to hire any individual or discharge employees because of the individual’s perceived or actual gender identity or sexual orientation (Yecies, 2011). Passage of this pending legislation would therefore be one way to provide nationalwide clarity desparately required by multi-state employers to adress the conflicting local and state laws that are vague in their provisions to protect LGBT individuals in the workplace (Pizer, Sears, Mallory, & Hunter, 2012).

However, despite its various strengths, this federal legislation has also come under attack from various stakeholders because of its perceived shortcomings that critics point out will hinder its effectiveness (Cavico, Muffler, & Mujtaba, 2012). ENDA in its current form has various exclusions that need redress in light of evolution of business practices, shifts in public opinions and developments in law over the recent past (Cavico, Muffler, & Mujtaba, 2012).

The exclusion of employee’s benefits is one area that ENDA provisions fail to address. The provisions also explicitly exclude disparate impact claims (Pizer, Sears, Mallory, & Hunter, 2012). In addition, the bill also limits challenges to gender identity or sexual orientation discrimination and harassment based on population data statistics (Cavico, Muffler, & Mujtaba, 2012). There is therefore an urgent need to address these shortcomings in order for the pending legislation to tackle the problems faced by LGBT in the workplace.

Furthermore, the Pentagon Working Group (PWG), which has the mandate and responsibility of developing inclusive recommendations regarding the repeal of “Don’t Ask, Don’t Tell”, should speed up the task of revising access to benefits for the openly gay individuals so that they can enjoy equal rights and treatment just like the other service members (Burns & Rothman, 2012).

PWG should review the benefits from a legal, feasibility, fiscal and policy perspective in order to bring equality to service members and guard against further discrimination. This will ensure gay service members as well as their families will receive vital benefits that DOMA currently denies them including travel and transportation allowances, family advocacy and spouse abuse services, family separation allowances, Morale Welfare and Recreation (MWR) program, basic housing allowance and TRICARE (Burns & Rothman, The Repeal of Don’t Ask, Don’t Tell—1 Year Later, 2012).

In as much as the LGBT are free from discrimination and harassment in the workplace through the repeal of DADT, there is concern that DOMA as a whole stands as an impediment towards the realizing of non-discriminatory laws in the workplace. Apart from PWG, other concerned stakeholders and agencies working towards elimination of workplace discrimination should also take timely and decisive action to ensure that the repeal of such provisions is timely and this will certainly help to protect LGBT employees from unfair treatment (Day & Schoenrade, 2000).

On a positive light, there has been some progress within the judicial circles in attempts to discredit DOMA as unconstitutional. In Golinski v. U.S. Office of Personnel Management, the plaintiff challenged the constitutionality of DOMA with specific emphasis on section 3 that defines spouse as “a husband or wife of the opposite sex” and marriage as being “between one man and one woman” (Pizer, Sears, Mallory, & Hunter, 2012).

The District Court ruled section 3 to be unconstitutional, while the Department of Justice (DOJ) similarly submitted a brief in which it concluded that section 3 was unconstitutional and deemed it discriminatory (Day & Schoenrade, 2000). The DOJ in its analysis pointed out to a significant and long history of persistent discrimination against lesbian, gay, bisexual and transgender people by local, state and federal governments as well as by private parties. As previously mentioned, section 3 of DOMA was ruled unconstitutional under the due process clause by the Supreme Court in United States v. Windsor, 570 U.S.

Another important solution for addressing the widespread discrimination of LGBT individuals in the workplace is coming up with anti-discrimination policies that create an environment conducive for disclosure in order to bring fairness and equity to LGBT workers (Day & Schoenrade, 2000). These workplace diversity programs, when encompassed in a specific, written and company-wide policy, can aid to relieve some of the anxiety and stress that gay and lesbian workers often experience due to fear of discrimination and perceived co-worker intolerance.

In addition, as Day & Schoenrade (2000) note, “such a policy also attempts to send a message to all workers that everyone will be respected and treated fairly” (348). Furthermore, the design of the workplace diversity program is crucial for enhancing LGBT commitment to the organization and feelings of job satisfaction and hence increases their engagement and productivity (Day & Schoenrade, 2000). Even though many companies have begun realizing success by incorporating clauses and policies to protect LGBT from discrimination in their areas of work, there is still need for strengthening the provisions of such policies to ensure that everyone in the organization is aware of the plight of LGBT and contributes positively to their accommodation (Yecies, 2011).

Day & Schoenrade (2000) point out that there is need for the top managements of the organization to take the lead in sensitizing other employees to realize the success of the anti-discrimination policies. The authors note that without support from top management, employees and other managers may not take the policies with the seriousness that they deserve, thereby making their enforcement difficult.

This is also a sentiment echoed by Mallory & Sears (2012) who assert that senior management support of diversity programs seeking to protect the LGBT from discrimination is crucial for both its success and adoption. The authors contend that designing policies that allow LGBT employees to disclose their sexual orientation openly is fundamental for enhancing more positive work attitudes that includes higher organizational commitment, lower conflict between home and work, lower job stress as well as higher job engagement and satisfaction (Mallory & Sears, 2012).

Another probable solution is creating awareness to local governments on the need for enacting policies favorable to LGBT employees. Mallory & Sears (2012) acknowledge the effectiveness of enacting local contractor ordinances that mandate LGBT related employment and workplace policies. Mallory & Sears (2012) note that as of 2012, sixty-eight local governments across the nation had successfully adopted and implemented three types of local contractor ordinances, which are equal benefit ordinances, affirmative action ordinances and non-discrimination ordinances.

The equal benefits ordinances demand that employers and contractors must offer benefits to the unmarried couples and LGBT employees’ benefits similar to those of the married couples. The affirmative action ordinances require contractors to take recruitment outreach steps or affirmative action with regard to sexual orientation, while the non-discrimination ordinances prohibit discrimination based on gender identity and sexual orientation (Mallory & Sears, 2012). With the success witnessed by the by the areas that have implemented the local contractor ordinances, it becomes clear that the replication of such ordinances in all localities can have a positive impact on reducing discrimination of LGBT and endowing them with equal rights.

Conclusion

Lesbian, gay, bisexual and transgender (LGBT) employees face pervasive discrimination in the workplace and this has subjected then to numerous predicaments in their personal and professional lives. The inadequacies of local, state and federal legislations as well as weak enforcement mechanisms of such regulations have made it very problematic to realize success in the fight against LGBT discrimination in the workplace. Although there have been numerous attempts and developments aimed at guaranteeing comprehensive protection to LGBT individuals, such attempts have had various limitations. For instance, while the repeal of the Don’t Ask Don’t Tell policy empowered gay and lesbian service members, provisions of DOMA limits the benefits enjoyed by the LGBT service members. In light of such inadequacies, there is an urgent need to empower pending legislations such as ENDA that have the potential to address the issue of LGBT discrimination in the workplace. Other solutions to the problem include initiating LGBT-friendly work diversity programs and local contractor ordinances. Such measures will create a favorable workplace environment for LGBT employees that will ultimately increase their productivity, satisfaction and job engagement.

References

Burns, C., & Krehely, J. (2011, June 2). Gay and Transgender People Face High Rates of Workplace Discrimination and Harassment. Retrieved May 19, 2013, from http://www.americanprogress.org/issues/lgbt/news/2011/06/02/9872/gay-and-transgender-people-face-high-rates-of-workplace-discrimination-and-harassment/

Burns, C., & Rothman, A. (2012, September 20). The Repeal of Don’t Ask, Don’t Tell—1 Year Later. Retrieved May 27, 2013, from http://www.americanprogress.org/issues/lgbt/report/2012/09/20/38764/the-repeal-of-dont-ask-dont-tell-1-year-later/

Cavico, F. J., Muffler, S. C., & Mujtaba, B. G. (2012). Sexual Orientation and Gender Identity Discrimination in the American Workplace: Legal and Ethical Considerations. International Journal of Humanities and Social Science , 2 (1), 1-20.

Day, N. E., & Schoenrade, P. (2000). The relationship among reported disclosure of sexual orientation, anti-discrimination policies, top management support and work attitudes of gay and lesbian employees. Personnel Review , 29 (3), 346-363.

Mallory, C., & Sears, B. (2012). An evaluation of local laws requiring government contractors to adopt LGBT-related workplace policies. Albany Government Law Review , 1-71.

Mawdsley, R. (2011). Employment, Sexual Orientation, and Religious Beliefs: Do Religious Educational Institutions Have a Protected Right to Discriminate in the Selection and Discharge of Employees. Brigham Young University Education and Law Journal , 279-327.

Pizer, J. C., Sears, B., Mallory, C., & Hunter, N. D. (2012). Evidence of Persistent and Pervasive Workplace Discrimination Against LGBT People: The Need for Federal Legislation Prohibiting Discrimination and Providing for Equal Employment Benefits. Loyola of Los Angeles Law Review , 45 (715), 715-780.

Yecies, S. (2011). Sexual Orientation, Discrimination, and the Universal Declaration of Rights. Chicago Journal of International Law , 11, 789-812.