This text was adapted by The Saylor Foundation under a Creative Commons Attribution-NonCommercial-ShareAlike 0 License without attribution as requested by the work’s original creator or licensee. Preface

Employment Discrimination

Federal law prohibits employment discrimination based on race, nationality, sex, or religion. Notice that this list does not include sexual orientation. It is entirely legal under federal law for employers to refuse to hire LGBT individuals or those perceived as LGBT, to fire an employee who is openly LGBT or perceived as LGBT, or to refuse to promote such an employee. Twenty-one states do prohibit employment discrimination based on sexual orientation, but that leaves twenty-nine states that do not prohibit such discrimination. Employers in these states are entirely free to refuse to hire, fire, or refuse to promote LGBT people (openly LGBT or perceived as LGBT) as they see fit. In addition, only fifteen states prohibit employment discrimination based on gender identity (transgender), which leaves thirty-five states in which employers may practice such discrimination (Human Rights Campaign, 2011).^[13]

The Employment Non-Discrimination Act (ENDA), which would prohibit job discrimination based on sexual orientation or gender identity, has been proposed in Congress but has not come close to passing. In response to the absence of legal protection for LGBT employees, many companies have instituted their own policies. As of March 2011, 87 percent of the Fortune 500 companies, the largest 500 corporations in the United States, had policies prohibiting sexual orientation discrimination, and 46 percent had policies prohibiting gender identity discrimination (Human Rights Campaign, 2011). ^[14]

National survey evidence shows that many LGBT people have, in fact, experienced workplace discrimination (Sears & Mallory, 2011). ^[15] In the 2008 GSS, 27.1 percent of LGB respondents said they had been verbally harassed at work during the past five years, and 7.1 percent said they had been either fired or not hired during the same period (SDA, 2008). ^[16] In other surveys that are not based on nationally representative samples, the percentage of LGB respondents who report workplace harassment or discrimination exceeds the GSS’s figures. Not surprisingly, more than one-third of LGB employees say they conceal their sexual orientation in their workplace. Transgender people appear to experience more employment problems than LGB people, as 78 percent of transgender respondents in one study reported some form of workplace harassment or discrimination. Scholars have also conducted field experiments in which they send out resumes or job applicants to prospective employers. The resumes are identical except that some mention the applicant is LGB, while the others do not indicate sexual orientation. The job applicants similarly either say they are LGB or do not say this. The LGB resumes and applicants are less likely than their non-LGB counterparts to receive a positive response from prospective employers.

LGBT people who experience workplace harassment and discrimination suffer in other ways as well (Sears & Mallory, 2011). ^[17] Compared to LGBT employees who do not experience these problems, they are more likely to have various mental health issues, to be less satisfied with their jobs, and to have more absences from work.